EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of
July 1, 2007
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP11
Commercial Mortgage Pass-Through Certificates
Series 2007-LDP11
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
Section 2.05 Grantor Trust Designations...................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans..........................................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..........................................
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution
Account, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve
Account and the Floating Rate Account.......................
Section 3.05 Permitted Withdrawals from the Certificate Accounts, the
Distribution Accounts, the Companion Distribution
Account and the Floating Rate Account.......................
Section 3.06 Investment of Funds in the Certificate Accounts, the
Distribution Accounts, the Gain-on-Sale Reserve Account,
the Interest Reserve Account and the REO Account............
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 [RESERVED]...................................................
Section 3.14 [RESERVED]...................................................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of the Master Servicer and Special
Servicer....................................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations, Warranties and Covenants of the Master
Servicer....................................................
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.25 Interest Reserve Account and Excess Interest Distribution
Account.....................................................
Section 3.26 Directing Certificateholder Contact with Master Servicer.....
Section 3.27 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
Section 3.28 Intercreditor Agreements.....................................
Section 3.29 Companion Paying Agent.......................................
Section 3.30 Companion Register...........................................
Section 3.31 Swap Contract................................................
Section 3.32 [RESERVED]...................................................
Section 3.33 Certain Matters Relating to the JQH Hotel Portfolio
Mortgage Loan...............................................
Section 3.34 Additional Matters Relating to the Certain of the
Mortgage Loans..............................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s..............................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certificate Ownership Certification..........................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer............................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer.....................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others...................
Section 6.04 Master Servicer and Special Servicer Not to Resign...........
Section 6.05 Rights of the Depositor in Respect of the Master Servicer
and the Special Servicer....................................
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner...........................................
Section 6.07 The Directing Certificateholder..............................
Section 6.08 Certain Matters with Respect to the JQH Hotel Portfolio
Whole Loan..................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination.................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee........................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee.....
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Use of Agents................................................
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee......................................
Section 10.04 Appointment of REMIC Administrators..........................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing Report......
Section 11.12 Indemnification..............................................
Section 11.13 Amendments...................................................
Section 11.14 Regulation AB Notices........................................
Section 11.15 Certain Matters Relating to the Future Securitization of
the Serviced Pari Passu Companion Loans.....................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law................................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Grant of a Security Interest.................................
Section 12.08 Successors and Assigns; Third Party Beneficiaries............
Section 12.09 Article and Section Headings.................................
Section 12.10 Notices to the Rating Agencies...............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-2FL Certificate
Exhibit A-4 Form of Class A-3 Certificate
Exhibit A-5 Form of Class A-4 Certificate
Exhibit A-6 Form of Class A-SB Certificate
Exhibit A-7 Form of Class A-1A Certificate
Exhibit A-9 Form of Class X Certificate
Exhibit A-10 Form of Class A-M Certificate
Exhibit A-11 Form of Class A-J Certificate
Exhibit A-12 Form of Class B Certificate
Exhibit A-13 Form of Class C Certificate
Exhibit A-14 Form of Class D Certificate
Exhibit A-15 Form of Class E Certificate
Exhibit A-16 Form of Class F Certificate
Exhibit A-17 Form of Class G Certificate
Exhibit A-18 Form of Class H Certificate
Exhibit A-19 Form of Class J Certificate
Exhibit A-20 Form of Class K Certificate
Exhibit A-21 Form of Class L Certificate
Exhibit A-22 Form of Class M Certificate
Exhibit A-23 Form of Class N Certificate
Exhibit A-24 Form of Class P Certificate
Exhibit A-25 Form of Class Q Certificate
Exhibit A-26 Form of Class T Certificate
Exhibit A-27 Form of Class NR Certificate
Exhibit A-28 Form of Class S Certificate
Exhibit A-29 Form of Class R Certificate
Exhibit A-30 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L Form of Notice Relating to the JQH Hotel Portfolio Mortgage
Loan
Exhibit M Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit N Form of Transfer Certificate for Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate during
Restricted Period
Exhibit O Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit P Form of Certification to be Provided with Form 10-K
Exhibit Q-1 Form of Certification to be Provided to Depositor by Trustee
Exhibit Q-2 Form of Certification to be Provided to Depositor by Master
Servicer
Exhibit Q-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit R Initial Companion Holders
Exhibit S Information Request from Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit T Trustee Certification/Exception Report
Exhibit U Servicing Criteria to be Addressed in Assessment of
Compliance
Exhibit V Additional Form 10-D Disclosure
Exhibit W Additional Form 10-K Disclosure
Exhibit X Form 8-K Disclosure Information
Exhibit Y Additional Disclosure Notification
Exhibit Z Servicing and Subservicing Agreements
Exhibit AA Swap Contract Related to the Class A-2FL Certificates
Exhibit BB Release Oversight Loans
Exhibit CC Tenants-In-Common Oversight Loans
Exhibit DD Form of Annual Compliance Statement
Exhibit EE Servicing Function Participants
Exhibit FF Form of Notice and Certification regarding Defeasance of
Mortgage
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Assumption Fees on Certain Mortgage Loans
Schedule 4 Class A-SB Planned Principal Balance Schedule
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of July 1, 2007, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as Master
Servicer, CWCapital Asset Management LLC, as Special Servicer, and LaSalle Bank
National Association, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Trustee shall elect or shall cause an election
to be made to treat the Trust Fund (exclusive of the Class A-2FL Regular
Interest, the Swap Contract, the Floating Rate Account, the Excess Interest, the
Excess Interest Distribution Account and the proceeds thereof) for federal
income tax purposes as two separate real estate mortgage investment conduits
(the "Upper-Tier REMIC" and the "Lower-Tier REMIC" as described herein).
The parties intend that the portion of the Trust Fund representing
(i) the Excess Interest, the Excess Interest Distribution Account and the
proceeds thereof, and (ii) the Class A-2FL Regular Interest, the Swap Contract,
the Floating Rate Account and the proceeds thereof will be treated as a grantor
trust under subpart E of Part I of subchapter J of the Code and that the
beneficial interests therein will be represented by the Class S Certificates and
the Class A-2FL Certificates, respectively.
LOWER-TIER REMIC
The Class XX-0, Xxxxx XX-0X, Xxxxx XX-0, Class LA-2FL, Class XX-0,
Xxxxx XX-0, Class A-SB, Class LA-M, Class LA-J, Class LB, Class LC, Class LD,
Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM,
Class LN, Class LP, Class LQ, Class LT and Class LNR Uncertificated Interests
will evidence "regular interests" in the Lower-Tier REMIC created hereunder. The
sole Class of "residual interests" in the Lower-Tier REMIC will be evidenced by
the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Interest Original Lower-Tier
Class Designation Rate Principal Amount
------------------------- --------------- --------------------------
Class LA-1 (1) $62,183,000
Class LA-1A (1) $1,155,652,000
Class LA-2 (1) $915,605,000
Class LA-2FL (1) $70,000,000
Class LA-3 (1) $283,043,000
Class LA-4 (1) $1,179,634,000
Class LA-SB (1) $123,791,000
Class LA-M (1) $541,415,000
Class LA-J (1) $426,365,000
Class LB (1) $33,839,000
Class LC (1) $81,212,000
Class LD (1) $54,141,0000
Class LE (1) $27,071,000
Class LF (1) $47,374,000
Class LG (1) $54,142,0000
Class LH (1) $67,676,000
Class LJ (1) $47,374,000
Class LK (1) $74,445,000
Class LL (1) $20,303,000
Class LM (1) $13,535,000
Class LN (1) $20,304,000
Class LP (1) $6,767,000
Class LQ (1) $13,536,000
Class LT (1) $20,303,000
Class LNR (1) $74,444,806
Class LR None(2) None(2)
------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Regular Distribution Amount shall be distributed to the Holders of the
Class LR Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date, if any, remaining in the
Lower-Tier Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class X-0, Xxxxx X-0, Class A-SB, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class
T, Class NR and Class X Certificates and the Class A-2FL Regular Interest will
evidence "regular interests" in the Upper-Tier REMIC created hereunder. The sole
Class of "residual interests" in the Upper-Tier REMIC created hereunder will be
evidenced by the Class R Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
for each Class of Certificates and the Class A-2FL Regular Interest comprising
the interests in the Upper-Tier REMIC created hereunder:
Original
Initial Certificate
Pass-Through Balance or Ratings(1)
Rate Notional Amount (Xxxxx'x/S&P)
----------------- ------------------- ----------------
Class A-1 Certificates(2) 5.65100% $62,183,000 Aaa/AAA
Class A-2 Certificates(2)(6) 5.99226% $915,605,000 Aaa/AAA
Class A-2FL Regular Interest(2) LIBOR+0.1400%(3) $70,000,000(4) Aaa/AAA(5)
Class A-3 Certificates(2)(7) 6.00726% $283,043,000 Aaa/AAA
Class A-4 Certificates(2) (7) 6.00726% $1,179,634,000 Aaa/AAA
Class A-SB Certificates(2) (7) 6.00726% $123,791,000 Aaa/AAA
Class A-1A Certificates(2) (7) 6.00726% $1,155,652,000 Aaa/AAA
Class A-M Certificates(7) 6.00726% $541,415,000 Aaa/AAA
Class A-J Certificates(7) 6.00726% $426,365,000 Aaa/AAA
Class B Certificates(7) 6.00726% $33,839,000 Aa1/AA+
Class C Certificates(7) 6.00726% $81,212,000 Aa2/AA
Class D Certificates(7) 6.00726% $54,141,0000 Aa3/AA-
Class E Certificates(7) 6.00726% $27,071,000 A1/A+
Class F Certificates(7) 6.00726% $47,374,000 A2/A
Class G Certificates(7) 6.00726% $54,142,0000 A3/A-
Class H Certificates(7) 6.00726% $67,676,000 Baa1/BBB+
Class J Certificates(7) 6.00726% $47,374,000 Baa2/BBB
Class K Certificates(7) 6.00726% $74,445,000 Baa3/BBB-
Class L Certificates(8) 5.58900% $20,303,000 Ba1/BB+
Class M Certificates(8) 5.58900% $13,535,000 Ba2/BB
Class N Certificates(8) 5.58900% $20,304,000 Ba3/BB-
Class P Certificates(8) 5.58900% $6,767,000 B1/B+
Class Q Certificates(8) 5.58900% $13,536,000 B2/B
Class T Certificates(8) 5.58900% $20,303,000 B3/B-
Class NR Certificates(8) 5.58900% $74,444,806 */*/*
Class R Certificates N/A(9) N/A(9) */*/*
Class X Certificates 0.02375%(10) $5,414,154,806(11) Aaa/AAA
------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-SB and Class A-1A Certificates and the Class
A-2FL Regular Interest, the pool of Mortgage Loans will be deemed to
consist of two distinct Loan Groups, Loan Group 1 and Loan Group 2.
(3) The Class A-2FL Regular Interest will be uncertificated and will be
transferred to the Trust Fund on the Closing Date, and the Trust will
issue the Class A-2FL Certificates in exchange therefor. The Pass-Through
Rate applicable to the Class A-2FL Regular Interest on each Distribution
Date will be equal to the Class A-2FL Regular Interest Pass-Through Rate.
The Pass-Through Rate applicable to the Class A-2FL Certificates on each
Distribution Date will be equal to the Class A-2FL Pass-Through Rate.
(4) The Certificate Balance of the Class A-2FL Certificates will be equal at
all times to the Certificate Balance of the Class A-2FL Regular Interest.
The Original Certificate Balance of the Class A-2FL Certificates will be
equal to $70,000,000.
(5) The Class A-2FL Regular Interest will not be rated. The ratings shown are
with respect to the Class A-2FL Certificates and only reflect receipt of
interest at the Class A-2FL Regular Interest Pass-Through Rate.
(6) The Pass-Through Rate for any Distribution Date for the Class A-2
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.01500%.
(7) The Pass-Through Rate for any Distribution Date for the Class X-0, Xxxxx
X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K Certificates
will be a per annum rate equal to the Weighted Average Net Mortgage Rate.
(8) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(9) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(10) The Pass Through Rate for the Class X Certificates will be calculated in
accordance with the definition of "Class X Pass Through Rate".
(11) The Class X Certificates will not have a Certificate Balance; rather, such
Class of Certificates will accrue interest as provided herein on the Class
X Notional Amount.
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$5,414,154,806.
Twenty-six mortgage loans (or groups of mortgage loans), the
Xxxxxxxx Xxxxx Pari Passu Companion Loan, the ChampionsGate Pari Passu Companion
Loan, the JQH Hotel Portfolio Pari Passu Companion Loan, the Carespring
Portfolio Pari Passu Companion Loans, the Xxxxx Portfolio Pari Passu Companion
Loans, the 000 Xxxxx Xxxxxx XX Companion Loan, the Edentree Apartment Village AB
Companion Loan, the Foothill Xxxx Apartments AB Companion Loan, the Lembi
Portfolio AB Companion Loan, the Stadium Towers AB Companion Loan, the Squire
Hill Apartments AB Companion Loan, the Four Points by Sheraton AB Companion Loan
and the Xxxxx State University AB Companion Loan (collectively, the "Companion
Loans") are not part of the Trust Fund, but are secured by the same Mortgage
that secures the related Mortgage Loan (each, with the exception of the Xxxxxxxx
Xxxxx Mortgage Loan, the ChampionsGate Mortgage Loan, the JQH Hotel Portfolio
Mortgage Loan, the Carespring Portfolio Mortgage Loan and the Xxxxx Portfolio
Mortgage Loans, an "AB Mortgage Loan" and, collectively, the "AB Mortgage
Loans") that is part of the Trust Fund. As and to the extent provided herein,
the Companion Loans will be serviced and administered in accordance with this
Agreement provided, however, that with respect to the JQH Hotel Portfolio Whole
Loan, upon the JQH Hotel Portfolio Servicing Transfer Event, the JQH Hotel Whole
Loan will be serviced pursuant to the BACM 2007-3 Pooling Agreement pursuant to
Section 6.8 hereof and no longer be serviced and administered in accordance with
this Agreement. Amounts attributable to the Companion Loans will not be assets
of the Trust Fund, and (except to the extent that such amounts are payable or
reimbursable to any party to this Agreement) will be owned by the related
Companion Holders.
The Xxxxxxxx Xxxxx Whole Loan consists of the Xxxxxxxx Xxxxx
Mortgage Loan and the Xxxxxxxx Xxxxx Pari Passu Companion Loan. The Xxxxxxxx
Xxxxx Mortgage Loan and the Xxxxxxxx Xxxxx Pari Passu Companion Loan are pari
passu with each other. The Xxxxxxxx Xxxxx Mortgage Loan is part of the Trust
Fund. The Xxxxxxxx Xxxxx Pari Passu Companion Loan is not part of the Trust
Fund. The Xxxxxxxx Xxxxx Mortgage Loan and the Xxxxxxxx Xxxxx Pari Passu
Companion Loan will be serviced and administered in accordance with this
Agreement and the Xxxxxxxx Xxxxx Intercreditor Agreement.
The ChampionsGate Whole Loan consists of the ChampionsGate Mortgage
Loan and the ChampionsGate Pari Passu Companion Loan. The ChampionsGate Mortgage
Loan and the ChampionsGate Pari Passu Companion Loan are pari passu with each
other. The ChampionsGate Mortgage Loan is part of the Trust Fund. The
ChampionsGate Pari Passu Companion Loan is not part of the Trust Fund. The
ChampionsGate Mortgage Loan and the ChampionsGate Pari Passu Companion Loan will
be serviced and administered in accordance with this Agreement and the
ChampionsGate Intercreditor Agreement.
The JQH Hotel Portfolio Whole Loan consists of the JQH Hotel
Portfolio Mortgage Loan and the JQH Hotel Portfolio Pari Passu Companion Loan.
The JQH Hotel Portfolio Mortgage Loan and the JQH Hotel Portfolio Pari Passu
Companion Loan are pari passu with each other. The JQH Hotel Portfolio Mortgage
Loan is part of the Trust Fund. The JQH Hotel Portfolio Pari Passu Companion
Loan is not part of the Trust Fund. The JQH Hotel Portfolio Mortgage Loan and
the JQH Hotel Portfolio Pari Passu Companion Loan will be serviced and
administered in accordance with this Agreement and the JQH Hotel Portfolio
Intercreditor Agreement until the JQH Hotel Portfolio Servicing Transfer Event,
at which time the JQH Hotel Portfolio Whole Loan will be serviced and
administered in accordance with the BACM 2007-3 Pooling Agreement and the JQH
Hotel Portfolio Intercreditor Agreement.
The Carespring Portfolio Whole Loan consists of the Carespring
Portfolio Mortgage Loan and the Carespring Portfolio Pari Passu Companion Loans.
The Carespring Portfolio Mortgage Loan and the Carespring Portfolio Pari Passu
Companion Loans are pari passu with each other. The Carespring Portfolio
Mortgage Loan is part of the Trust Fund. The Carespring Portfolio Pari Passu
Companion Loans are not part of the Trust Fund. The Carespring Portfolio
Mortgage Loan and the Carespring Portfolio Pari Passu Companion Loans will be
serviced and administered in accordance with this Agreement and the Carespring
Portfolio Intercreditor Agreement.
Each Xxxxx Portfolio Whole Loan consists of Xxxxx Portfolio Mortgage
Loans and the related Xxxxx Portfolio Pari Passu Companion Loan. Each applicable
Xxxxx Portfolio Mortgage Loan and the related Xxxxx Portfolio Pari Passu
Companion Loan are pari passu with each other. The Xxxxx Portfolio Mortgage
Loans are part of the Trust Fund. The Xxxxx Portfolio Pari Passu Companion Loans
are not part of the Trust Fund. The Xxxxx Portfolio Mortgage Loans and the Xxxxx
Portfolio Pari Passu Companion Loans will be serviced and administered in
accordance with this Agreement and the Xxxxx Portfolio Intercreditor Agreements.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"10-K Filing Deadline": As defined in Section 11.05.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"500 Xxxxx Center AB Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the 000 Xxxxx Xxxxxx Mortgage Loan.
"500 Xxxxx Center Controlling Holder": The "Controlling Holder" as
defined in the 000 Xxxxx Xxxxxx Intercreditor Agreement.
"500 Xxxxx Center Intercreditor Agreement": That certain Agreement
Among Noteholders, dated as of July 5, 2007, by and between Nomura Credit &
Capital, Inc., as the Initial Note A Holder, and Nomura Credit Capital, Inc., as
the Initial Note B Note Holder. The 500 Xxxxx Intercreditor Agreement relates to
the 000 Xxxxx Xxxxxx Whole Loan.
"500 Xxxxx Center Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 72.
"500 Xxxxx Center Whole Loan": The 500 Xxxxx Center Mortgage Loan
and the 000 Xxxxx Xxxxxx XX Companion Loan.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"AB Whole Loan": Each of the 000 Xxxxx Xxxxxx Whole Loan, the
Edentree Apartment Village Whole Loan, the Foothill Xxxx Apartments Whole Loan,
the Lembi Portfolio Whole Loan, the Stadium Towers Whole Loan, the Squire Hill
Apartments Whole Loan, the Four Points by Sheraton Whole Loan and the Xxxxx
State University Whole Loan.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Serviced Whole Loan, a default under the related Mortgage Loan documents arising
by reason of any failure on the part of the related Mortgagor to maintain with
respect to the related Mortgaged Property specific insurance coverage with
respect to, or an all-risk casualty insurance policy that does not specifically
exclude, terrorist or similar acts, and/or any failure on the part of the
related Mortgagor to maintain with respect to the related Mortgaged Property
insurance coverage with respect to damages or casualties caused by terrorist or
similar acts upon terms not materially less favorable than those in place as of
the Closing Date, as to which default the Master Servicer and the Special
Servicer may forbear taking any enforcement action; provided that the Master
Servicer (with respect to Non-Specially Serviced Mortgage Loans) or Special
Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, may
forbear taking any enforcement action; provided that the Special Servicer has
determined, in its reasonable judgment, based on inquiry consistent with the
Servicing Standards and subject to the consent of the Directing
Certificateholder (or, with respect to a Serviced Whole Loan, after receiving no
objection from the applicable Serviced Whole Loan Controlling Holder), that
either (a) such insurance is not available at commercially reasonable rates and
that such hazards are not at the time commonly insured against for properties
similar to the related Mortgaged Property and located in or around the region in
which such related Mortgaged Property is located, or (b) such insurance is not
available at any rate; provided, however, the Directing Certificateholder (or,
in the case of a Serviced Whole Loan, the applicable Serviced Whole Loan
Controlling Holder) will not have more than 30 days to respond to the Special
Servicer's request for consent; provided, further, upon the Special Servicer's
determination, consistent with the Servicing Standards, that exigent
circumstances do not allow the Special Servicer to wait for the consent of the
Directing Certificateholder (or, in the case of a Serviced Whole Loan, wait for
any objection from the applicable Serviced Whole Loan Controlling Holder), the
Special Servicer will not be required to do so. The Special Servicer shall be
entitled to rely on insurance consultants in making determinations described
above. The costs of such insurance consultants shall be paid from the applicable
Certificate Account as a Servicing Advance to the extent the Mortgage Loan
documents do not prohibit such amounts from being collected from the related
Mortgagor and otherwise as an expense of the Trust Fund.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, an amount equal to interest
for the related Interest Accrual Period at the Pass-Through Rate of such Class
of Certificates or the Class A-2FL Regular Interest, as applicable, for such
Distribution Date, accrued on the related Certificate Balance (or with respect
to the Class X Certificates, the Notional Amount of such Class) outstanding
immediately prior to such Distribution Date (provided that for interest accrual
purposes any distributions in reduction of Certificate Balance or Notional
Amount or reductions in Certificate Balance or Notional Amount as a result of
allocations of Collateral Support Deficit on the Distribution Date occurring in
an Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period). Accrued Certificate Interest shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to each
Distribution Date and any Class of Certificates (other than the Class X, Class S
and Class A-2FL Certificates and the Residual Certificates), and the Class A-2FL
Regular Interest that had an increase to its Certificate Balance as a result of
a recovery of Nonrecoverable Advances, an amount equal to interest at the
Pass-Through Rate applicable to that Class on the amount of such increase to its
Certificate Balance accrued from the Distribution Date on which Collateral
Support Deficit was allocated to such Class as a result of the reimbursement of
Nonrecoverable Advances from the Trust to, but not including, the Distribution
Date on which the Certificate Balance was so increased.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as
such in the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Disclosure Notification": The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as
Exhibit Y.
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Servicer": Each Affiliate of the Master Servicer, the
Special Servicer or any Mortgage Loan Seller that services any of the Mortgage
Loans and each Person who is not an Affiliate of the Master Servicer, other than
the Special Servicer, who Services 10% or more of the Mortgage Loans by unpaid
principal balance as of any date of determination pursuant to Article XI.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"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.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"AIG": AIG Mortgage Capital, LLC and its successors in interest and
assigns.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable Servicing Criteria": means with respect to the Trustee,
the Master Servicer, the Special Servicer or any Servicing Function Participant,
the Servicing Criteria applicable to it, as set forth on Exhibit U attached
hereto. For clarification purposes, multiple parties can have responsibility for
the same Applicable Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Trustee, the Master Servicer or the Special Servicer,
the term "Applicable Servicing Criteria" may refer to a portion of the
Applicable Servicing Criteria applicable to the Master Servicer, the Special
Servicer, the Trustee, as the case may be.
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee by either (i) an Opinion of Counsel
delivered to them, or (ii) written notice from the appropriate taxing authority
as to the applicability of such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than the JQH Hotel Portfolio Mortgage Loan after the JQH
Hotel Portfolio Servicing Transfer Event) and any Serviced Whole Loan as to
which an Appraisal Reduction Event has occurred, will be an amount calculated by
the Master Servicer, based upon the appraised value determined by the Special
Servicer, in consultation with the Directing Certificateholder, as of the first
Determination Date that is at least 10 Business Days following the date on which
the Special Servicer receives and delivers to the Master Servicer the related
Appraisal, equal to the excess of (a) the Stated Principal Balance of such
Mortgage Loan and any related Companion Loan or the Stated Principal Balance of
the applicable Serviced Whole Loan, as the case may be, over (b) the excess of
(i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property
as determined (1) by one or more Appraisals with respect to any Mortgage Loan
(together with any other Mortgage Loan cross-collateralized with such Mortgage
Loan) (or any Serviced Whole Loan) with an outstanding principal balance equal
to or in excess of $2,000,000 (the costs of which shall be paid by the Master
Servicer as a Servicing Advance) or (2) by an internal valuation performed by
the Special Servicer with respect to any Mortgage Loan (together with any other
Mortgage Loan cross-collateralized with such Mortgage Loan) (or any Serviced
Whole Loan) with an outstanding principal balance less than $2,000,000 minus
with respect to any Appraisals, such downward adjustments as the Special
Servicer may make (without implying any obligation to do so) based upon its
review of the Appraisal and any other information it deems relevant, and (B) all
escrows, letters of credit and reserves in respect of such Mortgage Loan (or a
Serviced Whole Loan) as of the date of calculation over (ii) the sum of, as of
the Due Date occurring in the month of the date of determination, (A) to the
extent not previously advanced by the Master Servicer or the Trustee, all unpaid
interest due on such Mortgage Loan (or a Serviced Whole Loan) at a per annum
rate equal to its Mortgage Rate (and any accrued and unpaid interest on any
related Companion Loan), (B) all unreimbursed Advances and interest thereon at
the Reimbursement Rate in respect of such Mortgage Loan (or a Serviced Whole
Loan) and (C) all currently due and unpaid real estate taxes, assessments,
insurance premiums, ground rents, unpaid Special Servicing Fees and all other
amounts due and unpaid with respect to such Mortgage Loan or Serviced Whole
Loan, as applicable (which taxes, premiums, ground rents and other amounts have
not been the subject of an Advance by the Master Servicer or the Trustee, as
applicable); provided, however, without limiting the Special Servicer's
obligation to order and obtain such Appraisal, if the Special Servicer has not
obtained the Appraisal or valuation, as applicable, referred to above within 60
days of the Appraisal Reduction Event (or with respect to the Appraisal
Reduction Events set forth in clauses (i) and (vi) of the definition of
Appraisal Reduction Event, within 120 days or 90 days, respectively, after the
initial delinquency for the related Appraisal Reduction Event), the amount of
the Appraisal Reduction shall be deemed to be an amount equal to 25% of the
current Stated Principal Balance of the related Mortgage Loan (or the Serviced
Whole Loan in the case of a Serviced Whole Loan) until such time as such
appraisal or valuation referred to above is received and the Appraisal Reduction
is calculated. Within 60 days after the Appraisal Reduction Event, the Special
Servicer shall order and receive an Appraisal (the cost of which shall be paid
by the Master Servicer as a Servicing Advance); provided, however, with respect
to an Appraisal Reduction Event as set forth in clause (i) of the definition of
Appraisal Reduction Event, the Special Servicer shall order and receive such
Appraisal within the 120-day period set forth in such clause (i), which
Appraisal shall be delivered by the Special Servicer to the Master Servicer, the
Directing Certificateholder and the Trustee.
With respect to each Mortgage Loan (other than the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event)
and with respect to a Serviced Whole Loan and any related Companion Loan as to
which an Appraisal Reduction has occurred (unless such Mortgage Loan or Serviced
Whole Loan has become a Corrected Mortgage Loan (for such purposes taking into
account any amendment or modification of such Mortgage Loan, any related
Companion Loan or any Serviced Whole Loan), the Special Servicer shall, within
thirty (30) days of each anniversary of the related Appraisal Reduction Event,
order an Appraisal (which may be an update of a prior Appraisal), the cost of
which shall be paid by the Master Servicer as a Servicing Advance or conduct an
internal valuation, as applicable and, promptly following receipt of any such
Appraisal or the completion of any such internal valuation, shall deliver a copy
thereof to the Master Servicer, the Directing Certificateholder and the Trustee
and with respect to each Serviced Whole Loan, the related Controlling Holder.
Based upon such Appraisal or internal valuation of the Special Servicer, the
Master Servicer shall redetermine (in consultation with the Directing
Certificateholder) and report to the Directing Certificateholder, the Special
Servicer and the Trustee the amount of the Appraisal Reduction with respect to
such Mortgage Loan and Companion Loan or Serviced Whole Loan, as applicable, and
such redetermined Appraisal Reduction shall replace the prior Appraisal
Reduction with respect to such Mortgage Loan and Companion Loan or Serviced
Whole Loan, as applicable. The Directing Certificateholder shall have ten (10)
Business Days to review each calculation of an Appraisal Reduction.
Notwithstanding the foregoing, the Special Servicer will not be required to
obtain an Appraisal or conduct an internal valuation, as applicable, with
respect to a Mortgage Loan, any related Companion Loan and any Serviced Whole
Loan which is the subject of an Appraisal Reduction Event to the extent the
Special Servicer has obtained an Appraisal or conducted such a valuation (in
accordance with requirements of this Agreement), as applicable, with respect to
the related Mortgaged Property within the twelve-month period immediately prior
to the occurrence of such Appraisal Reduction Event. Instead, the Special
Servicer may use such prior Appraisal or valuation, as applicable, in
calculating any Appraisal Reduction with respect to such Mortgage Loan, any
related Companion Loan and any Serviced Whole Loan; provided that the Special
Servicer is not aware of any material change to the related Mortgaged Property
having occurred and affecting the validity of such appraisal or valuation, as
applicable, and provides notice to the Master Servicer to use such previous
Appraisal or update.
After the JQH Hotel Portfolio Servicing Transfer Event, any
Appraisal Reduction in respect of the JQH Hotel Portfolio Whole Loan shall be
calculated by the BACM 2007-3 Master Servicer in accordance with and pursuant to
the terms of the BACM 2007-3 Pooling Agreement. Any Mortgage Loan, any related
Companion Loan and any Serviced Whole Loan, as applicable, previously subject to
an Appraisal Reduction which Mortgage Loan, any related Companion Loan and any
Serviced Whole Loan, as applicable, has become a Corrected Mortgage Loan (for
such purposes taking into account any amendment or modification of such Mortgage
Loan, any related Companion Loan and any Serviced Whole Loan, as applicable),
and with respect to which no other Appraisal Reduction Event has occurred and is
continuing, will no longer be subject to an Appraisal Reduction. Any Appraisal
Reduction for a Serviced Whole Loan shall be allocated in accordance with the
applicable Serviced Whole Loan Intercreditor Agreement to the applicable
Serviced Mortgage Loan and the applicable Companion Loan and, in the absence of
provisions allocating such amounts in the applicable Intercreditor Agreement, in
the case of a Serviced Whole Loan, first to the related subordinate Companion
Loan, if any, until reduced to zero and then to the related Mortgage Loan and
each pari passu Companion Loan(s), pro rata and pari passu among the Mortgage
Loan and the related pari passu Companion Loans in accordance with their
respective Stated Principal Balances.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan (other than the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event)
or the related REO Property will be reduced to zero as of the date on which such
Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed from
the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event) and any related Companion Loan, the earliest of (i)
120 days after an uncured delinquency (without regard to the application of any
grace period) occurs in respect of such Mortgage Loan and any related Companion
Loan, (ii) the date on which a reduction in the amount of Monthly Payments on
such Mortgage Loan and any related Companion Loan, or a change in any other
material economic term of such Mortgage Loan and any related Companion Loan
(other than an extension of the Maturity Date), becomes effective as a result of
a modification of such Mortgage Loan and any related Companion Loan by the
Special Servicer, (iii) the date on which a receiver has been appointed, (iv) 60
days after a Mortgagor declares bankruptcy, (v) 60 days after the date on which
an involuntary petition of bankruptcy is filed with respect to a Mortgagor if
not dismissed within such time, (vi) 90 days after an uncured delinquency occurs
in respect of a Balloon Payment with respect to such Mortgage Loan and any
related Companion Loan, except where a refinancing is anticipated within 120
days after the Maturity Date of the Mortgage Loan or the Mortgage Loan and any
related Companion Loan, in which case 120 days after such uncured delinquency,
and (vii) immediately after such Mortgage Loan and any related Companion Loan,
becomes an REO Loan; provided, however, an Appraisal Reduction Event shall not
occur at any time when the aggregate Certificate Balances of all Classes of
Certificates (other than the Class A Certificates) have been reduced to zero.
The Special Servicer shall notify the Master Servicer, or the Master Servicer
shall notify the Special Servicer, as applicable, promptly upon the occurrence
of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property (other
than the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio
Servicing Transfer Event), the appraised value thereof as determined by an
Appraisal of the Mortgaged Property securing the related Mortgage Loan or any
Serviced Whole Loan, as applicable. With respect to the JQH Hotel Portfolio
Mortgaged Property after the JQH Hotel Portfolio Servicing Transfer Event, the
appraised value allocable thereto is determined pursuant to and in accordance
with the BACM 2007-3 Pooling Agreement.
"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 Excess Interest at the rate specified in the related
Mortgage Note and the Mortgagor 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.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Trustee or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans (and in the
case of the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel
Portfolio Servicing Transfer Event, only to the extent received by the
Trust pursuant to the JQH Hotel Portfolio Intercreditor Agreement) on
deposit in each Certificate Account (exclusive of any Net Investment
Earnings contained therein and exclusive of any amount on deposit in or
credited to any portion of each Certificate Account that is held for the
benefit of the Companion Holders) and the Lower-Tier Distribution Account
(without regard to any payments made to or received from the Swap
Counterparty) as of the close of business on the related P&I Advance Date,
exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period, including
interest related to payments received after, but due on or before,
the Cut-off Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
each Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses
(iv) through (ix), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in each Certificate Account, the
Lower-Tier Distribution Account and, without duplication, the REO
Account in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year (in either case, unless the related
Distribution Date is the final Distribution Date), an amount equal
to one day of interest on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage Rate to
the extent such amounts are Withheld Amounts; and
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to each Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to the Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March (or February
if the final Distribution Date occurs in such month), the Withheld Amounts
remitted to the Lower-Tier Distribution Account pursuant to Section
3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g) that would have accrued for the calendar month prior to such
Distribution Date.
Notwithstanding the investment of funds held in the Certificate Accounts
pursuant to Section 3.06, for purposes of calculating the Available Distribution
Amount, the amounts so invested shall be deemed to remain on deposit in such
account.
"BACM 2007-3 Master Servicer": After the JQH Hotel Portfolio
Servicing Transfer Event, the "Master Servicer" for the JQH Hotel Portfolio
Whole Loan under the BACM 2007-3 Pooling Agreement; provided, however, if at any
time the JQH Hotel Portfolio Whole Loan ceases to be serviced under the BACM
2007-3 Pooling Agreement, then, with respect to such Whole Loan, references
herein to the BACM 2007-3 Master Servicer shall be deemed to be references to
the successor "Master Servicer" for such Whole Loan as provided in the related
Intercreditor Agreement.
"BACM 2007-3 Pooling Agreement": The (i) pooling and servicing
agreement to be entered into by and among Banc of America Commercial Mortgage
Inc., as depositor, Bank of America, National Association, as master servicer,
Midland Loan Services, Inc. , as special servicer and Xxxxx Fargo Bank, N.A., as
trustee and REMIC administrator, as from time to time amended, supplemented or
modified relating to the issuance of the Banc of America Commercial Mortgage,
Inc., Commercial Mortgage Pass-Through Certificate, Series 2007-3 or (ii) with
respect to the JQH Hotel Portfolio Whole Loan, any successor pooling and
servicing agreement entered into pursuant to the JQH Hotel Portfolio
Intercreditor Agreement.
"BACM 2007-3 Special Servicer": After the JQH Hotel Portfolio
Servicing Transfer Event, the "Special Servicer" for the JQH Hotel Portfolio
Whole Loan under the BACM 2007-3 Pooling Agreement; provided, however that if at
any time the JQH Hotel Portfolio Whole Loan ceases to be serviced under the BACM
2007-3 Pooling Agreement, then, with respect to such Whole Loan, references
herein to the BACM 2007-3 Special Servicer shall be deemed to be references to
the successor "Special Servicer" for such Whole Loan as provided in the related
Intercreditor Agreement.
"BACM 2007-3 Trust": The Banc of America Commercial Mortgage Trust
2007-3, which is to be administered pursuant to the BACM 2007-3 Pooling
Agreement.
"BACM 2007-3 Trustee": The "Trustee" under the BACM 2007-3 Pooling
Agreement; provided, however that if at any time the JQH Hotel Portfolio Whole
Loan ceases to be serviced under the BACM 2007-3 Pooling Agreement, then, with
respect to such Whole Loan, references herein to the BACM 2007-3 Trustee shall
be deemed to be references to the successor "Trustee" for such Whole Loan as
provided in the related Intercreditor Agreement.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A-1, Class A-2, Class X-0,
Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K Certificates and the
Class A-2FL Regular Interest, a fraction (a) whose numerator is the greater of
(x) zero and (y) the amount by which (i) the Pass-Through Rate on such Class of
Certificates or Regular Interest, as applicable, exceeds (ii) the discount rate
used in accordance with the related Mortgage Loan documents in calculating the
Yield Maintenance Charge with respect to such Principal Prepayment and (b) whose
denominator is the amount by which (i) the Mortgage Rate on such Mortgage Loan
exceeds (ii) the discount rate used in accordance with the related Mortgage Loan
documents in calculating the Yield Maintenance Charge with respect to such
Principal Prepayment. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater than the Mortgage
Rate on such Mortgage Loan, then the Base Interest Fraction will equal zero. The
Master Servicer shall provide to the Trustee the discount rate references above
for purposes of calculating the Base Interest Fraction.
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer therefor and the proceeds of any bid pursuant to Section 7.01(c),
the amount of such proceeds (net of any expenses incurred in connection with
such bid and the transfer of servicing), multiplied by a fraction equal to (a)
the Servicing Fee Amount for the Master Servicer or such Sub-Servicer therefor,
as the case may be, as of such date of determination, over (b) the aggregate of
the Servicing Fee Amounts for the Master Servicer and all Sub-Servicers therefor
as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Pittsburgh, Pennsylvania,
Chicago, Illinois, San Francisco, California, or the cities and states in which
the Corporate Trust Office of the Trustee, or the principal place of business of
the Master Servicer, the Trustee or the Special Servicer is located, are
authorized or obligated by law or executive order to remain closed.
"Carespring Portfolio Companion Loan Securities": Any class of
securities backed, wholly or partially, by any Carespring Portfolio Pari Passu
Companion Loan.
"Carespring Portfolio Controlling Holder": The "Directing Holder" as
defined in the Carespring Portfolio Intercreditor Agreement.
"Carespring Portfolio Intercreditor Agreement": The Intercreditor
Agreement, by and among the holders of the Carespring Portfolio Notes, dated
June 28, 2007, relating to the relative rights of such holders of the Carespring
Portfolio Whole Loan, as the same may be further amended in accordance with the
terms thereof.
"Carespring Portfolio Mortgage Loan": With respect to the Carespring
Portfolio Whole Loan, the Mortgage Loan that is included in the Trust
(identified as Mortgage Loan No. 39 on the Mortgage Loan Schedule), which is
designated as promissory note A-1 and is pari passu in right of payment with the
Carespring Portfolio Pari Passu Companion Loans to the extent set forth in the
related Mortgage Loan documents and as provided in the Carespring Portfolio
Intercreditor Agreement.
"Carespring Portfolio Mortgaged Property": The Mortgaged Property
that secures the Carespring Portfolio Whole Loan.
"Carespring Portfolio Notes": The Carespring Portfolio Mortgage Loan
and the Carespring Portfolio Pari Passu Companion Loans.
"Carespring Portfolio A-2 Pari Passu Companion Loan": With respect
to the Carespring Portfolio Whole Loan, the related promissory note made by the
related Mortgagor and secured by the Mortgage on the Carespring Portfolio
Mortgaged Property and designated as promissory note A-2, which is not included
in the Trust and which is pari passu in right of payment to the Carespring
Portfolio Mortgage Loan and the Carespring Portfolio A-3 Pari Passu Companion
Loan, to the extent set forth in the related Mortgage Loan documents and as
provided in the Carespring Portfolio Intercreditor Agreement.
"Carespring Portfolio A-3 Pari Passu Companion Loan": With respect
to the Carespring Portfolio Whole Loan, the related promissory note made by the
related Mortgagor and secured by the Mortgage on the Carespring Portfolio
Mortgaged Property and designated as promissory note A-3, which is not included
in the Trust and which is pari passu in right of payment to the Carespring
Portfolio Mortgage Loan and the Carespring Portfolio A-2 Pari Passu Companion
Loan, to the extent set forth in the related Mortgage Loan documents and as
provided in the Carespring Portfolio Intercreditor Agreement.
"Carespring Portfolio Pari Passu Companion Loans": The Carespring
Portfolio A-2 Pari Passu Companion Loan and the Carespring Portfolio A-3 Pari
Passu Companion Loan.
"Carespring Portfolio Pari Passu Companion Loan Holder": Each holder
of a Carespring Portfolio Pari Passu Companion Loan.
"Carespring Portfolio Whole Loan": The Carespring Portfolio Mortgage
Loan, together with the Carespring Portfolio Pari Passu Companion Loans, each of
which is secured by the same Mortgage on the Carespring Portfolio Mortgaged
Property. References herein to the Carespring Portfolio Whole Loan shall be
construed to refer to the aggregate indebtedness under the Carespring Portfolio
Notes.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Wachovia Bank, National Association, as Master Servicer, on behalf of
LaSalle Bank National Association, as Trustee, in trust for the registered
holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 2007-LDP11, Certificate Account." Any
such account or accounts shall be an Eligible Account. Subject to the related
Intercreditor Agreement and taking into account that each Companion Loan is
subordinate or pari passu to the related Mortgage Loan to the extent and as set
forth in the related Intercreditor Agreement, the subaccount described in the
second paragraph of Section 3.04(b) that is part of a Certificate Account shall
be for the benefit of the related Companion Holder, to the extent funds on
deposit in such subaccount are attributed to such Companion Loan and shall not
be an asset of the Trust Fund or the Upper-Tier REMIC or Lower-Tier REMIC formed
hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S Certificates and the Class X
Certificates) and the Class A-2FL Regular Interest, (i) on or prior to the first
Distribution Date, an amount equal to the Original Certificate Balance of such
Class as specified in the Preliminary Statement hereto, and (ii) as of any date
of determination after the first Distribution Date, the Certificate Balance of
such Class of Certificates or the Class A-2FL Regular Interest on the
Distribution Date immediately prior to such date of determination (determined as
adjusted pursuant to Section 1.02(iii)). The Certificate Balance (including the
Original Certificate Balance) of the Class A-2FL Certificates shall be equal at
all times to the Certificate Balance of the Class A-2FL Regular Interest.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class A-2FL, Class X and
Class R Certificates) and the Class A-2FL Regular Interest, the amount of
Mortgage Deferred Interest allocated to such Class of Certificates or Class
A-2FL Regular Interest, as applicable, pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, solely
for the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Master Servicer, the
Special Servicer, the Trustee, the Depositor or any Affiliate thereof shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver has
been obtained, if such consent, approval or waiver sought from such party would
in any way increase the compensation of the Depositor, the Master Servicer, the
Special Servicer or the Trustee or limit the obligations of the Depositor, the
Master Servicer, the Special Servicer or the Trustee, as applicable, hereunder;
provided, however, so long as there is no Event of Default with respect to the
Master Servicer or the Special Servicer, the Master Servicer, the Special
Servicer or such Affiliate of either shall be entitled to exercise such Voting
Rights with respect to any issue which could reasonably be believed to adversely
affect such party's compensation or increase its obligations or liabilities
hereunder; and provided, further, however, such restrictions shall not apply to
the exercise of the Special Servicer's rights (or the Master Servicer's rights,
if any) or the rights of any of their Affiliates as a member of the Controlling
Class. The Trustee shall be entitled to request and rely upon a certificate of
the Master Servicer, the Special Servicer or the Depositor in determining
whether a Certificate is registered in the name of an Affiliate of such Person.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, the parties hereto shall be required to recognize as
a "Holder" or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer": As defined in Section 11.09.
"ChampionsGate Companion Loan Securities": Any class of securities
backed, wholly or partially, by any ChampionsGate Pari Passu Companion Loan.
"ChampionsGate Controlling Holder": The "Lead Lender" as defined in
the ChampionsGate Intercreditor Agreement.
"ChampionsGate Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated July 5, 2007, by and among the holders of the
ChampionsGate Notes, relating to the relative rights of such holders of the
ChampionsGate Whole Loan, as the same may be further amended in accordance with
the terms thereof.
"ChampionsGate Mortgage Loan": With respect to the ChampionsGate
Whole Loan, the Mortgage Loan that is included in the Trust (identified as
Mortgage Loan No. 10 on the Mortgage Loan Schedule), which is pari passu in
right of payment with the ChampionsGate Pari Passu Companion Loan to the extent
set forth in the related Mortgage Loan documents and as provided in the
ChampionsGate Intercreditor Agreement.
"ChampionsGate Mortgaged Property": The Mortgaged Property which
secures the ChampionsGate Whole Loan.
"ChampionsGate Notes": The ChampionsGate Mortgage Loan and the
ChampionsGate Pari Passu Companion Loan.
"ChampionsGate Pari Passu Companion Loan": With respect to the
ChampionsGate Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the ChampionsGate Mortgaged Property,
which is not included in the Trust and which is pari passu in right of payment
to the ChampionsGate Mortgage Loan to the extent set forth in the related
Mortgage Loan documents and as provided in the ChampionsGate Intercreditor
Agreement.
"ChampionsGate Pari Passu Companion Loan Holder": The holder of any
ChampionsGate Pari Passu Companion Loan.
"ChampionsGate Whole Loan": The ChampionsGate Mortgage Loan,
together with the ChampionsGate Pari Passu Companion Loan, each of which is
secured by the same Mortgage on the ChampionsGate Property. References herein to
the ChampionsGate Whole Loan shall be construed to refer to the aggregate
indebtedness under the ChampionsGate Notes.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-2, Class A-2FL, Class
A-3, Class A-4, Class A-SB and Class A-1A Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.65100%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-7 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.01500%.
"Class A-2FL Available Funds": With respect to any Distribution
Date, the sum of (i) the total amount of all principal and/or interest
distributions on or in respect of the Class A-2FL Regular Interest with respect
to such Distribution Date and (ii) the amounts, if any, received from the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date, less
(iii) all amounts (exclusive of any Yield Maintenance Charges allocated in
respect of the Class A-2FL Regular Interest) required to be paid to the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date.
"Class A-2FL Certificate": A Certificate designated as "Class A-2FL"
on the face thereof, in the form of Exhibit A-3 hereto, and evidencing an
undivided beneficial interest in the portion of the Grantor Trust consisting of
the Class A-2FL Regular Interest, the Class A-2FL Floating Rate Account, the
Swap Contract and the proceeds thereof.
"Class A-2FL Distribution Conversion": With respect to any
Distribution Date (i) during the continuation of a Swap Default while the
Trustee is pursuing remedies under the Swap Contract pursuant to Section 3.31 or
(ii) following the termination of the Swap Contract, the conversion of
distributions to the Class A-2FL Certificates from distributions based, in part,
on interest payments from the Swap Counterparty under the Swap Contract to
distributions based solely on distributions in respect of the Class A-2FL
Regular Interest, as specified in Section 4.01(k).
"Class A-2FL Fixed Swap Payment": With respect to any Distribution
Date, the amount required to be paid to the Swap Counterparty by the Trust under
the Swap Contract.
"Class A-2FL Floating Swap Payment": With respect to any
Distribution Date, the amount required to be paid to the Trust by the Swap
Counterparty under the Swap Contract.
"Class A-2FL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee pursuant to Section 3.04(b), which
shall be entitled "LaSalle Bank National Association, as Trustee, in trust for
the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP11 Commercial Mortgage Pass Through Certificates, Series 2007-LDP11
Class A-2FL Certificates, Class A-2FL Floating Rate Account," and which must be
an Eligible Account (or a subaccount of an Eligible Account). The Floating Rate
Account shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier
REMIC formed hereunder.
"Class A-2FL Interest Distribution Amount": With respect to any
Distribution Date, the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-2FL Pass-Through Rate applicable for such
Distribution Date on the Certificate Balance outstanding immediately prior to
such Distribution Date of such Class and (b) to the extent not previously paid,
amounts of interest distributable on the Class A-2FL Certificates for all
previous Distribution Dates.
"Class A-2FL Net Swap Payment": With respect to the related Interest
Accrual Period, the excess, if any of (i) the Class A-2FL Fixed Swap Payment,
over (ii) the Class A-2FL Floating Swap Payment.
"Class A-2FL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-2FL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.1400%, and with respect to
any Distribution Date on which a Class A-2FL Distribution Conversion has
occurred and is continuing, a per annum rate equal to the Class A-2FL Regular
Interest Pass-Through Rate.
"Class A-2FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-2FL Regular Interest on such
Distribution Date.
"Class A-2FL Regular Interest": The uncertificated interest
corresponding to the Class A-2FL Certificates and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2FL Regular Interest Distribution Amount": With respect to
any Distribution Date, the aggregate distributions on the Class A-2FL Regular
Interest pursuant to this Agreement, including, but not limited to, any payments
of interest, principal, Yield Maintenance Charges and/or reimbursements.
"Class A-2FL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to 5.69400%.
"Class A-2FL Swap Default": (a) Any failure on the part of the Swap
Counterparty to (i) make a required payment under the Swap Contract or (ii)
either post acceptable collateral or find an acceptable replacement Swap
Counterparty after a Rating Agency Trigger Event has occurred as required by
Part 1, paragraph (k) of the Schedule to the Master Agreement in the Swap
Contract or (b) an early termination date is designated under the Swap Contract
in accordance with its terms.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-4 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-5 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-SB Certificate": A Certificate designated as "Class A-SB"
on the face thereof, in the form of Exhibit A-6 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-SB Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the planned principal amount for such Distribution Date
specified in Schedule 4 hereto relating to the Class A-SB Certificates.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the Weighted Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.58900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2FL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-30 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class LT Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.58900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-23 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.58900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-27 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.58900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-24 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.58900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Q Certificate": A Certificate designated as "Class Q" on the
face thereof, in the form of Exhibit A-25 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Q Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.58900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-29 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-28 hereto, and evidencing an undivided
beneficial interest in the portion of the Grantor Trust consisting of the Excess
Interest, the Excess Interest Distribution Account and the proceeds thereof.
"Class T Certificate": A Certificate designated as "Class T" on the
face thereof, in the form of Exhibit A-26 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class T Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.58900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates (other than the Class A-2FL Certificates) or the Class
A-2FL Regular Interest, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class of Certificates or
Class A-2FL Regular Interest, as applicable, for the immediately preceding
Distribution Date and (ii) any outstanding Class Unpaid Interest Shortfall
payable to such Class of Certificates or Class A-2FL Regular Interest, as
applicable, on such preceding Distribution Date over (b) the aggregate amount in
respect of interest actually distributed to such Class of Certificates or Class
A-2FL Regular Interest, as applicable, on such immediately preceding
Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class
of Certificates and the Class A-2FL Regular Interest as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in the Upper Tier REMIC for
purposes of the REMIC Provisions.
"Class X Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all the Components.
"Class X Pass-Through Rate": With respect to any Distribution Date,
the weighted average of the Class X Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to the
Distribution Date).
"Class X Strip Rate": With respect to any Class of the Components
for any Distribution Date, a rate per annum equal to (i) the Weighted Average
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass Through Rate
for the Related Certificates.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": July 5, 2007.
"Closing Date Deposit Amount": $0, representing the aggregate amount
of interest that would have accrued at the related Mortgage Rates on the
applicable Mortgage Loans commencing July 1, 2007 for those Mortgage Loans that
do not have a Due Date in August 2007.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Master Servicer
and the Directing Certificateholder.
"CMSA Advance Recovery Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally as is reasonably
acceptable to Master Servicer and the Special Servicer.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Trustee and the Master Servicer.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": Collectively:
(a) the following electronic data files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File, (vi) CMSA Collateral Summary File and (vii)
CMSA Special Servicer Loan File; and
(b) the following supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification & Corrected Mortgage Loan
Report, (iii) CMSA REO Status Report, (iv) CMSA Operating Statement Analysis
Report, (v) CMSA Comparative Financial Status Report, (vi) CMSA Servicer Watch
List, (vii) CMSA NOI Adjustment Worksheet, (viii) CMSA Loan Level Reserve/LOC
Report, (ix) CMSA Servicer Realized Loss Report, (x) CMSA Advance Recovery
Report and (xi) CMSA Total Loan Report.
The CMSA IRP shall be substantially in the form of, and containing
the information called for in, the downloadable forms of the "CMSA IRP"
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 or
reports as may from time to time be approved by the CMSA for commercial mortgage
backed securities transaction generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA IRP" available as of the Closing Date on the CMSA website, as is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee. For the purposes of the production of the CMSA Comparative Financial
Status Report by the Master Servicer or the Special Servicer if any such report
that is required to state information for any period prior to the Cut-off Date,
the Master Servicer or the Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the Mortgage Loan Sellers or by the related
Mortgagor or (x) in the case of such a report produced by the Master Servicer,
by the Special Servicer (if other than the Master Servicer or an Affiliate
thereof) and (y) in the case of such a report produced by the Special Servicer,
by the Master Servicer (if other than the Special Servicer or an Affiliate
thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicer and
the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the applicable form of the "CMSA NOI Adjustment Worksheet" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as the case may be.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the applicable form of the "CMSA Operating
Statement Analysis Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be.
"CMSA Servicer Realized Loss Report": The report in the "Servicer
Realized Loss Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Realized Loss Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be.
"CMSA Servicer Watch List": As of each Determination Date a report,
including and identifying each Non Specially Serviced Mortgage Loan satisfying
the "CMSA Portfolio Review Guidelines" approved from time to time by the CMSA in
the "CSMA Servicer Watch List" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form (including other portfolio review guidelines) for the presentation of
such information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Servicer Watch List" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"CMSA Total Loan Report": A monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Total Loan Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be adopted by the CMSA for
commercial mortgage-backed securities transactions and is reasonably acceptable
to the Master Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to each Companion
Loan (other than the JQH Hotel Portfolio Pari Passu Companion Loan after the JQH
Hotel Portfolio Servicing Transfer Event), the separate account or accounts
created and maintained by the applicable Companion Paying Agents pursuant to
Section 3.04(b) and held on behalf of the Companion Holders, which shall be
entitled "Wachovia Bank, National Association, as Companion Paying Agent for the
Companion Holders of the Companion Loans, relating to the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP11 Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11." The Companion Distribution Account shall not
be an asset of the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC, but
instead shall be held by the applicable Companion Paying Agent on behalf of the
related Companion Holders. Any such account shall be an Eligible Account.
Notwithstanding the foregoing, if the Master Servicer and the related Companion
Paying Agent are the same entity, the Companion Distribution Account maintained
by such Companion Paying Agent may be the subaccount referenced in the second
paragraph of Section 3.04(b).
"Companion Holder": Each of the holders of the Companion Loans.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Loan Securities": The Xxxxxxxx Xxxxx Companion Loan
Securities, the ChampionsGate Companion Loan Securities, the JQH Hotel Portfolio
Companion Loan Securities, the Carespring Portfolio Companion Loan Securities
and the Xxxxx Portfolio Companion Loan Securities.
"Companion Paying Agent": The Master Servicer in its role as
Companion Paying Agent appointed pursuant to Section 3.29.
"Companion Register": The register maintained by each Companion
Paying Agent pursuant to Section 3.30.
"Compensating Interest Payments": An amount as of any Distribution
Date equal to the lesser of (i) the aggregate amount of Prepayment Interest
Shortfalls incurred in connection with voluntary principal prepayments received
in respect of the Mortgage Loans (other than the Specially Serviced Mortgage
Loans) serviced by the Master Servicer and (ii) the aggregate of (A) that
portion of the Master Servicer's Servicing Fees for such Distribution Date that
is, in the case of each and every Mortgage Loan and REO Loan for which such
Servicing Fees are being paid for such Due Period, calculated at 0.01% (1.0
basis points) per annum, and (B) all Prepayment Interest Excesses with respect
to the Master Servicer received in respect of the Mortgage Loans for the related
Distribution Date and (C) to the extent earned on Principal Prepayments, Net
Investment Earnings received by the Master Servicer during such Due Period with
respect to the Mortgage Loans and related Companion Loans subject to the
prepayment. However, if a Prepayment Interest Shortfall occurs as a result of
the Master Servicer's allowing the related Mortgagor to deviate from the terms
of the related Mortgage Loan documents regarding Principal Prepayments (other
than (X) subsequent to a default under the related Mortgage Loan documents (with
the consent of the Special Servicer), (Y) pursuant to applicable law or a court
order, or (Z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (1) all Servicing Fees with respect to the Master Servicer
for such Due Period, (2) all Prepayment Interest Excesses with respect to the
Master Servicer and (3) to the extent earned solely on Principal Prepayments,
Net Investment Earnings received by the Master Servicer during such Due Period
with respect to the Mortgage Loan subject to such Principal Prepayment. In no
event will the rights of the Certificateholders to offset the aggregate
Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0X, Xxxxxxxxx
XX-0, Component XA-2FL, Component XX-0, Xxxxxxxxx XX-0, Component XA-SB,
Component XA-M, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG, Component XH, Component XJ, Component
XK, Component XL, Component XM, Component XN, Component XP, Component XQ,
Component XT and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower Tier Principal Amount
of its Related Uncertificated Lower Tier Interest.
"Component XA-1": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1 Uncertificated Interest as of any
date of determination.
"Component XA-1A": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A Uncertificated Interest as of any
date of determination.
"Component XA-2": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2 Uncertificated Interest as of any
date of determination.
"Component XA-2FL": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2FL Uncertificated Interest as of
any date of determination.
"Component XA-3": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3 Uncertificated Interest as of any
date of determination.
"Component XA-4": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-4 Uncertificated Interest as of any
date of determination.
"Component XA-J": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-J Uncertificated Interest as of any
date of determination.
"Component XA-M": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-M Uncertificated Interest as of any
date of determination.
"Component XA-SB": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-SB Uncertificated Interest as of any
date of determination.
"Component XB": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LB Uncertificated Interest as of any date of
determination.
"Component XC": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LC Uncertificated Interest as of any date of
determination.
"Component XD": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LD Uncertificated Interest as of any date of
determination.
"Component XE": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LE Uncertificated Interest as of any date of
determination.
"Component XF": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LF Uncertificated Interest as of any date of
determination.
"Component XG": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LG Uncertificated Interest as of any date of determination.
"Component XH": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the current Lower-Tier Principal
Amount of the Class LH Uncertificated Interest as of any date of determination.
"Component XJ": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LJ Uncertificated Interest as of any date of
determination.
"Component XK": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LK Uncertificated Interest as of any date of
determination.
"Component XL": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LL Uncertificated Interest as of any date of
determination.
"Component XM": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LM Uncertificated Interest as of any date of
determination.
"Component XN": One of the 25 components of the Class X Certificates
then having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LN Uncertificated Interest as of any date of
determination.
"Component XNR": One of the 25 components of the Class X
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XP": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LP Uncertificated Interest as of any date of
determination.
"Component XQ": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LQ Uncertificated Interest as of any date of
determination.
"Component XT": One of the 25 components of the Class X Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LT Uncertificated Interest as of any date of
determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services,
JPMorgan Chase Commercial Mortgage Securities Trust 2007-LDP11, Commercial
Mortgage Pass-Through Certificates, Series 2007-LDP11 (telephone number (312)
000-0000).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the Master Servicer pursuant to Section 3.21(a). After the JQH
Hotel Portfolio Servicing Transfer Event, the JQH Hotel Portfolio Mortgage Loan
shall not constitute a Corrected Mortgage Loan under this Agreement; provided,
that the Special Servicer shall be entitled to receive any earned Workout Fee
for so long as the JQH Hotel Portfolio Mortgage Loan does not become a
"specially serviced mortgage loan" (or similar term) under the BACM 2007-3
Pooling Agreement.
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the most
recent twelve month period covered by an annual operating statement for the
related Mortgaged Properties preceding the repurchase or substitution shall not
be less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the most recent
twelve month period covered by an annual operating statement for the related
Mortgaged Properties preceding the repurchase or substitution, and (b) 1.25x,
(ii) the weighted average LTV Ratio for all remaining related Crossed Loans
determined at the time of repurchase or substitution based upon an Appraisal
obtained by the Special Servicer at the expense of the related Mortgage Loan
Seller shall not be greater than the lesser of (a) the weighted average LTV
Ratio for all such related Crossed Loans, including the affected Crossed Loan,
determined at the time of repurchase or substitution based upon an Appraisal
obtained by the Special Servicer at the expense of the related Mortgage Loan
Seller and (b) 75%, (iii) the Mortgage Loan Seller, at its expense, shall have
furnished the Trustee with an Opinion of Counsel that any modification relating
to the repurchase or substitution of a Crossed Loan shall not cause an Adverse
REMIC Event, (iv) the related Mortgage Loan Seller causes the affected Crossed
Loan to become not cross-collateralized and cross-defaulted with the remaining
related Crossed Loans prior to such repurchase or substitution or otherwise
forbears from exercising enforcement rights against the Primary Collateral of
any Crossed Loan remaining in the Trust Fund and (v) the Directing
Certificateholder shall have consented to the repurchase or substitution of the
affected Crossed Loan, which consent shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of that Mortgage Loan in July 2007, or, with respect to each of those
Mortgage Loans that have their first Due Date after July 2007, the origination
date of that Mortgage Loan.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period; provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the Master Servicer or Special Servicer
has, by written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt,
a defaulted Companion Loan does not constitute a "Defaulted Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(l).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder (or a representative thereof identified to the Master
Servicer, the Special Servicer and the Trustee) selected by more than 50% of the
Controlling Class Certificateholders, by Certificate Balance, as certified by
the Certificate Registrar from time to time; provided, however, (i) absent such
selection, or (ii) until a Directing Certificateholder is so selected or (iii)
upon receipt of a notice from a majority of the Controlling Class
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer designated, the Controlling Class Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class will be the
Directing Certificateholder which will initially be American Capital Strategies,
Ltd. Notwithstanding the foregoing, with respect to the JQH Hotel Portfolio
Whole Loan prior to the JQH Hotel Portfolio Servicing Transfer Event, any
references to the Directing Certificateholder in this Agreement in Sections 6.07
and 7.01(d) (solely with respect to the JQH Hotel Portfolio Whole Loan) shall be
deemed to be references to the JQH Hotel Portfolio Pari Passu Companion Loan
Holder, which shall be entitled to take all actions and receive all notices in
connection with the JQH Hotel Portfolio Whole Loan pursuant to the procedures
set forth in the JQH Hotel Portfolio Intercreditor Agreement.
"Directly Operate": With respect to any REO Property (except with
respect to the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel
Portfolio Servicing Transfer Event), the furnishing or rendering of services to
the tenants thereof, that are not customarily provided to tenants in connection
with the rental of space "for occupancy only" within the meaning of Treasury
Regulations Section 1.512(b)-1(c)(5), the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers, the
use of such REO Property in a trade or business conducted by the Trust Fund or
on behalf of a Companion Holder or the performance of any construction work on
the REO Property (other than the completion of a building or improvement, where
more than 10% of the construction of such building or improvement was completed
before default became imminent), other than through an Independent Contractor;
provided, however, an REO Property shall not be considered to be Directly
Operated solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance or makes decisions as to repairs or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates (other than the Class
A-2FL Certificates) and the Class A-2FL Regular Interest, the Accrued
Certificate Interest in respect of such Class of Regular Certificates or the
Class A-2FL Regular Interest, as applicable, for such Distribution Date, reduced
(to not less than zero) by any allocations to such Class of Certificates (other
than in the case of the Class X Certificates) or the Class A-2FL Regular
Interest, as applicable, of (i) the product of (a) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (b) a fraction,
expressed as a decimal, the numerator of which is the Accrued Certificate
Interest in respect of such Class of Certificates or the Class A-2FL Regular
Interest, as applicable, for such Distribution Date, and the denominator of
which is the aggregate Accrued Certificate Interest in respect of all the
Classes of Regular Certificates (other than the Class A-2FL Certificates and the
Class X Certificates) and the Class A-2FL Regular Interest for such Distribution
Date, and (ii) any Certificate Deferred Interest for such Distribution Date
allocated to such Class of Certificates or the Class A-2FL Regular Interest, as
applicable, pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Excess Interest Distribution
Account and the Floating Rate Account, all of which may be subaccounts of a
single Eligible Account.
"Distribution Date": The 15th day of each month, or, if such 15th
day is not a Business Day, on the next succeeding Business Day, beginning in
August 2007.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note (or such other Mortgage Loan document, as applicable) on which
each Monthly Payment thereon is scheduled to be first due, (ii) any Mortgage
Loan or Companion Loan after the Maturity Date therefor, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment on such
Mortgage Loan or Companion Loan had been scheduled to be first due, and (iii)
any REO Loan, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on the related Mortgage Loan or Companion Loan had
been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan or Companion Loan occurring in the month
preceding the month in which such Distribution Date occurs and ending on and
including the Due Date for such Mortgage Loan or Companion Loan occurring in the
month in which such Distribution Date occurs; provided that the first Due Period
with respect to any Mortgage Loan or Companion Loan with its first Due Date in
August 2007 or September 2007 will commence on the day immediately following the
Cut-off Date of such Mortgage Loan or Companion Loan. Notwithstanding the
foregoing, in the event that the last day of a Due Period (or applicable grace
period) is not a Business Day, any Monthly Payments received with respect to the
Mortgage Loans or Companion Loan relating to such Due Period on the Business Day
immediately following such day shall be deemed to have been received during such
Due Period and not during any other Due Period.
"Edentree Apartment Village AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Edentree Apartment Village
Mortgage Loan.
"Edentree Apartment Village Controlling Holder": The "Controlling
Holder" as defined in the Edentree Apartment Village Intercreditor Agreement.
"Edentree Apartment Village Intercreditor Agreement": That certain
Agreement Among Noteholders, dated as of July 5, 2007, by and between Nomura
Credit & Capital, Inc., as the Initial Note A Holder, and Nomura Credit Capital,
Inc., as the Initial Note B Note Holder. The Edentree Apartment Village
Intercreditor Agreement relates to the Edentree Apartment Village Whole Loan.
"Edentree Apartment Village Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as Loan No. 81.
"Edentree Apartment Village Whole Loan": The Edentree Apartment
Village Mortgage Loan and the Edentree Apartment Village AB Companion Loan.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company with a combined capital surplus of not less than $50,000,000, (A)(x) the
long-term unsecured debt obligations of which are rated at least "Aa3" by
Moody's, if the deposits are to be held in such account for more than 30 days
and (y) the short term debt obligations of which have a short-term rating of not
less than "P-1" from Moody's, if the deposits are to be held in such account for
30 days or less, and (B)(x) the long-term unsecured debt obligations of which
are rated at least "A+" by S&P (or "A-" by S&P so long as the short-term deposit
or short-term unsecured debt obligations of such depository institution or trust
company are rated no less than "A-1" by S&P), if the deposits are to be held in
such account for more than 30 days and (y) the short-term debt obligations of
which have a short-term rating of not less than "A-1" by S&P, if the deposits
are to be held in such account for 30 days or less, (ii) a segregated trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company with a combined
capital surplus of not less than $50,000,000 that, in either case, has corporate
trust powers, acting in its fiduciary capacity; provided that any state
chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b) or
(iii) such other account or accounts with respect to (x) each of the Rating
Agencies shall have confirmed in writing that the then current rating assigned
to any of the Certificates or any Companion Loan Securities will not be
qualified, downgraded or withdrawn by reason thereof, (y) the Directing
Certificateholder shall have reasonably approved and (z) the use of which would
not, in and of itself, be inconsistent with the requirements of FASB 140 or any
interpretations with respect thereto applicable to such accounts. Eligible
Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527 99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"Environmental Laws" shall mean any present or future federal, state
or local law, statute, regulation or ordinance, any judicial or administrative
order or judgment thereunder, pertaining to health, industrial hygiene,
hazardous substances or the environment, including, but not limited to, each of
the following, as enacted as of the date hereof or as hereafter amended: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. xx.xx. 9601 et seq.; the Resource Conservation and Recovery Act of 1976,
42 U.S.C. xx.xx. 6901 et seq.; the Toxic Substance Control Act, 15 U.S.C. xx.xx.
2601 et seq.; the Water Pollution Control Act (also known as the Clean Water
Act, 22 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act, 42 U.S.C. xx.xx. 7401 et
seq. and the Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 1801 et
seq.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class L, Class M, Class N, Class
P, Class Q, Class T or Class NR Certificate; provided that any such Certificate:
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer of such Certificate, either (i) it is
rated in one of the four highest generic ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would permit the transfer of such
Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of either of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Trustee pursuant to Section
3.04(c), which shall be entitled "LaSalle Bank National Association, as Trustee,
in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-LDP11 Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11, Excess Interest Distribution Account," and which must be an
Eligible Account (or a subaccount of an Eligible Account). The Excess Interest
Distribution Account shall not be an asset of either of the Lower-Tier REMIC or
the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations of the Commission thereunder.
"Eurohypo": Eurohypo AG, New York Branch, a German banking
corporation, or its successor in interest.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FASB 140": The Financial Accounting Standards Board's Statement No.
140, entitled "Accounting for Transfers and Servicing of Financial Assets and
Extinguishment of Liabilities", issued in September 2002.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan (and, if
applicable, any defaulted Companion Loan) or REO Property (other than a Mortgage
Loan or REO Property, as the case may be, that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan
Purchase Agreement, the Controlling Class Option Holder, the applicable
Companion Holder or the Special Servicer pursuant to Section 3.18(b), any
mezzanine lender pursuant to Section 3.18(e) or the Master Servicer, Special
Servicer, the Holders of the Controlling Class, or the Holders of the Class LR
Certificates pursuant to Section 9.01) that there has been a recovery of all
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other
payments or recoveries that, in the Special Servicer's judgment, which judgment
was exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable; provided that the term "Final Recovery Determination" shall, after
the JQH Hotel Portfolio Servicing Transfer Event, include any comparable
determination made by the BACM 2007-3 Master Servicer pursuant to the BACM
2007-3 Pooling Agreement with respect to the JQH Hotel Portfolio Mortgage Loan
or any related REO Property. The Directing Certificateholder shall have ten (10)
Business Days to review and approve each such recovery determination by the
Special Servicer; provided, however, if the Directing Certificateholder fails to
approve or disapprove any recovery determination within ten (10) Business Days
of receipt of the initial recovery determination, such approval shall be deemed
given.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Floating Rate Account": The Class A-2FL Floating Rate Account.
"Foothill Xxxx Apartments AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Foothill Xxxx Apartments Mortgage
Loan.
"Foothill Xxxx Controlling Holder": The "Controlling Holder" as
defined in the Foothill Xxxx Intercreditor Agreement.
"Foothill Xxxx Apartments Intercreditor Agreement": That certain
Agreement Among Noteholders, dated as of July 5, 2007, by and between Nomura
Credit & Capital, Inc., as the Initial Note A Holder, and Nomura Credit Capital,
Inc., as the Initial Note B Note Holder. The Foothill Xxxx Apartments
Intercreditor Agreement relates to the Foothill Xxxx Apartments Whole Loan.
"Foothill Xxxx Apartments Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 123.
"Foothill Xxxx Apartments Whole Loan": The Foothill Xxxx Apartments
Mortgage Loan and the Foothill Xxxx Apartments AB Companion Loan.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Four Points by Sheraton AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Four Points by Sheraton Mortgage
Loan.
"Four Points by Sheraton Controlling Holder": The "Controlling
Holder" as defined in the Four Points by Sheraton Intercreditor Agreement.
"Four Points by Sheraton Intercreditor Agreement": That certain
Agreement Among Noteholders, dated as of June 14, 2007, by and between JPMorgan
Chase Bank, N.A., as the A Note Holder, and Mezz Cap Finance, LLC, as the B Note
Holder. The Four Points by Sheraton Intercreditor Agreement relates to the Four
Points by Sheraton Whole Loan.
"Four Points by Sheraton Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 115.
"Four Points by Sheraton Whole Loan": The Four Points by Sheraton
Mortgage Loan and the Four Points by Sheraton AB Companion Loan.
"Xxxxxxxx Xxxxx A-2 Pari Passu Companion Loan": With respect to the
Xxxxxxxx Xxxxx Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Xxxxxxxx Xxxxx Mortgaged Property
and designated as promissory note A-2, which is not included in the Trust and
which is pari passu in right of payment to the Xxxxxxxx Xxxxx Mortgage Loan to
the extent set forth in the related Mortgage Loan documents and as provided in
the Xxxxxxxx Xxxxx Intercreditor Agreement.
"Xxxxxxxx Xxxxx Companion Loan Securities": Any class of securities
backed, wholly or partially, by any Xxxxxxxx Xxxxx Pari Passu Companion Loan.
"Xxxxxxxx Xxxxx Controlling Holder": The "Controlling Note Holder"
as defined in the Xxxxxxxx Xxxxx Intercreditor Agreement.
"Xxxxxxxx Xxxxx Intercreditor Agreement": The Intercreditor
Agreement, by and among the holders of the Xxxxxxxx Xxxxx Notes, dated as of
July 5, 2007, relating to the relative rights of such holders of the Xxxxxxxx
Xxxxx Whole Loan, as the same may be further amended in accordance with the
terms thereof.
"Xxxxxxxx Xxxxx Mortgage Loan": With respect to the Xxxxxxxx Xxxxx
Whole Loan, the Mortgage Loan that is included in the Trust (identified as
Mortgage Loan No. 6 on the Mortgage Loan Schedule), which is designated as
promissory note A-1 and is pari passu in right of payment with the Xxxxxxxx
Xxxxx Pari Passu Companion Loan to the extent set forth in the related Mortgage
Loan documents and as provided in the Xxxxxxxx Xxxxx Intercreditor Agreement.
"Xxxxxxxx Xxxxx Mortgaged Property": The Mortgaged Property that
secures the Xxxxxxxx Xxxxx Whole Loan.
"Xxxxxxxx Xxxxx Notes": The Xxxxxxxx Xxxxx Mortgage Loan and the
Xxxxxxxx Xxxxx Pari Passu Companion Loan.
"Xxxxxxxx Xxxxx Pari Passu Companion Loan": The Xxxxxxxx Xxxxx A-2
Pari Passu Companion Loan.
"Xxxxxxxx Xxxxx Pari Passu Companion Loan Holder": Each holder of a
Xxxxxxxx Xxxxx Pari Passu Companion Loan.
"Xxxxxxxx Xxxxx Whole Loan": The Xxxxxxxx Xxxxx Mortgage Loan,
together with the Xxxxxxxx Xxxxx Pari Passu Companion Loan, each of which is
secured by the same Mortgage on the Xxxxxxxx Xxxxx Mortgaged Property.
References herein to the Xxxxxxxx Xxxxx Whole Loan shall be construed to refer
to the aggregate indebtedness under the Xxxxxxxx Xxxxx Notes.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or
Companion Loan, as applicable, the excess of (i) Liquidation Proceeds of the
Mortgage Loan or Companion Loan or related REO Property net of any related
Liquidation Expenses, Unliquidated Advances, unreimbursed Advances, Liquidation
Fees, unreimbursed interest on Advances, unpaid Servicing Fees, and unpaid
Special Servicing Fees and additional Trust Fund expenses over (ii) the Purchase
Price for such Mortgage Loan or Companion Loan, as applicable, on the date on
which such Liquidation Proceeds were received. For the avoidance of doubt,
Gain-on-Sale Proceeds allocable to a Companion Loan shall not be assets of the
Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Trustee,
pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Trustee, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Trust 2007-LDP11 Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11, Gain-on-Sale Reserve Account." Any such account
shall be an Eligible Account or a subaccount of an Eligible Account.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account, beneficial ownership of which is
represented by the Class S Certificates and (ii) the Class A-2FL Regular
Interest, the Swap Contract, the Floating Rate Account and the proceeds thereof,
beneficial ownership of which is represented by the Class A-2FL Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
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 which would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any specified
Person, any such Person who (i) is in fact independent of the Trustee, the
Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder, any Companion Holder, and all Affiliates thereof, (ii) does
not have any material direct financial interest in or any material indirect
financial interest in any of the Trustee, the Depositor, the Master Servicer,
the Special Servicer, the Directing Certificateholder, any Companion Holder or
any Affiliate thereof and (iii) is not connected with the Trustee, the
Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder, any Companion Holder or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, a Person shall not fail to be Independent
of the Trustee, the Depositor, the Master Servicer, the Special Servicer, the
Directing Certificateholder, any Companion Holder or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Depositor, the Master Servicer, the
Special Servicer, the Directing Certificateholder, any Companion Holder or any
Affiliate thereof, as the case may be; provided such beneficial ownership
constitutes less than 1% of the total assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Master Servicer, any Companion Holder or the Trust, delivered to the Trustee,
any Companion Holder and the Master Servicer), so long as the Trust does not
receive or derive any income from such Person and provided that the relationship
between such Person and the Trust is at arm's length, all within the meaning of
Treasury Regulations Section 1.856-4(b)(5) (except that the Master Servicer or
the Special Servicer shall not be considered to be an Independent Contractor
under the definition in this clause (i) unless an Opinion of Counsel has been
delivered to the Trustee to that effect) or (ii) any other Person (including the
Master Servicer and the Special Servicer) upon receipt by the Trustee and the
Master Servicer of an Opinion of Counsel, which shall be at no expense to the
Trustee, the Master Servicer or the Trust Fund, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property.
"Initial Purchasers": X.X. Xxxxxx Securities Inc. and UBS Securities
LLC.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement. The Initial
Sub-Servicers are set forth on Exhibit Z hereto.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of any Serviced Mortgage Loan or the
JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing
Transfer Event, to the extent any portion of such proceeds are received by the
Trustee in connection with such Serviced Mortgage Loan or the JQH Hotel
Portfolio Mortgage Loan, as applicable, pursuant to the allocations set forth in
the related Intercreditor Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreements": Any of the Xxxxxxxx Xxxxx Intercreditor
Agreement, the ChampionsGate Intercreditor Agreement, the JQH Hotel Portfolio
Intercreditor Agreement, the Carespring Portfolio Intercreditor Agreement, the
Xxxxx Portfolio Intercreditor Agreements, the Lembi Portfolio Intercreditor
Agreement, the Stadium Towers Intercreditor Agreement, the 000 Xxxxx Xxxxxx
Intercreditor Agreement, the Edentree Apartment Village Intercreditor Agreement,
the Squire Hill Apartments Intercreditor Agreement, the Foothill Xxxx Apartments
Intercreditor Agreement, the Four Points by Sheraton Intercreditor Agreement and
the Xxxxx State University Intercreditor Agreement individually or collectively,
as the context may require.
"Interest Accrual Period": With respect to any Class of Regular
Certificates (other than the Class A-2FL Certificates if the Class A-2FL
Distribution Conversion is not in effect), the Class A-2FL Regular Interest or
the Uncertificated Lower-Tier Interests and any Distribution Date, the period
beginning on the first day of the calendar month preceding the calendar month in
which the related Distribution Date occurs and ending on the last day of the
calendar month preceding the calendar month in which such Distribution Date
occurs, calculated assuming that each month has 30 days and each year has 360
days. With respect to the Class A-2FL Certificates and any Distribution Date for
which the Class A-2FL Distribution Conversion is not in effect, the Interest
Accrual Period will be the period from and including the Distribution Date in
the month preceding the month in which the related Distribution Date occurs (or
in the case of the first Distribution Date, the Closing Date) to, but excluding
the related Distribution Date, calculated assuming that each month has the
actual number of days in such Interest Accrual Period and each year has 360
days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates (other than the Class A-2FL Certificates) and the Class A-2FL
Regular Interest for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates or Class A-2FL Regular Interest,
as applicable, for such Distribution Date and any Accrued Interest From
Recoveries for such Class, to the extent not previously paid for all prior
Distribution Dates.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Trustee pursuant to Section
3.25 in the name of "LaSalle Bank National Association, as Trustee, in trust for
the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11 Commercial Mortgage Pass-Through Certificates, Series 2007-LDP11,
Interest Reserve Account," into which the amounts set forth in Section 3.25
shall be deposited directly and which must be an Eligible Account or subaccount
of an Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, each Companion Holder (but only with respect to the related
Serviced Whole Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section
5.02(b)(iii).
"JPMorgan": JPMorgan Chase Bank, National Association, a banking
association organized under the laws of the United States, or its successor in
interest.
"JQH Hotel Portfolio Companion Loan Securities": Any class of
securities backed, wholly or partially, by the JQH Hotel Portfolio Pari Passu
Companion Loan.
"JQH Hotel Portfolio Controlling Holder": The "Lead Lender" as
defined in the JQH Hotel Portfolio Intercreditor Agreement.
"JQH Hotel Portfolio Intercreditor Agreement": The A Notes
Intercreditor Agreement, dated July 5, 2007, by and between the holders of the
JQH Hotel Portfolio Notes, relating to the relative rights of such holders of
the JQH Hotel Portfolio Whole Loan, as the same may be further amended in
accordance with the terms thereof.
"JQH Hotel Portfolio Mortgage Loan": With respect to the JQH Hotel
Portfolio Whole Loan, the Mortgage Loan that is included in the Trust
(identified as Mortgage Loan No. 25 on the Mortgage Loan Schedule), which is
designated as promissory note A-2 and is pari passu in right of payment with the
JQH Hotel Portfolio Pari Passu Companion Loan to the extent set forth in the
related Mortgage Loan documents and as provided in the JQH Hotel Portfolio
Intercreditor Agreement.
"JQH Hotel Portfolio Mortgaged Property": The Mortgaged Properties
which secure the JQH Hotel Portfolio Whole Loan.
"JQH Hotel Portfolio Notes": The JQH Hotel Portfolio Mortgage Loan
and the JQH Hotel Portfolio Pari Passu Companion Loan.
"JQH Hotel Portfolio Pari Passu Companion Loan": With respect to the
JQH Hotel Portfolio Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the JQH Hotel Portfolio Mortgaged
Property and designated as promissory note A-1, which is not included in the
Trust and which is pari passu in right of payment to the JQH Hotel Portfolio
Mortgage Loan to the extent set forth in the related Mortgage Loan documents and
as provided in the JQH Hotel Portfolio Intercreditor Agreement.
"JQH Hotel Portfolio Pari Passu Companion Loan Holder": The holder
of the JQH Hotel Portfolio Pari Passu Companion Loan.
"JQH Hotel Portfolio Servicing Transfer Event": The date on which
the securitization relating to the BACM 2007-3 Trust closes and servicing of the
JQH Hotel Portfolio Whole Loan under this Agreement is to be transferred to and
governed under the BACM 2007-3 Pooling Agreement (in accordance with the JQH
Hotel Portfolio Intercreditor Agreement).
"JQH Hotel Portfolio Whole Loan": The JQH Hotel Portfolio Mortgage
Loan, together with the JQH Hotel Portfolio Pari Passu Companion Loan, each of
which is secured by the same Mortgages on the JQH Hotel Portfolio Mortgaged
Property. References herein to the JQH Hotel Portfolio Whole Loan shall be
construed to refer to the aggregate indebtedness under the JQH Hotel Portfolio
Notes.
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"Lembi Portfolio AB Companion Loan": That certain loan evidenced by
a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Lembi Portfolio Mortgage Loan.
"Lembi Portfolio Controlling Holder": The "Controlling Holder" as
defined in the Lembi Portfolio Intercreditor Agreement.
"Lembi Portfolio Intercreditor Agreement": That certain Agreement
Among Noteholders, dated as of July 5, 2007, by and between Nomura Credit &
Capital, Inc., as the Initial Note A Holder, and Nomura Credit Capital, Inc., as
the Initial Note B Note Holder. The Lembi Portfolio Intercreditor Agreement
relates to the Lembi Portfolio Whole Loan.
"Lembi Portfolio Mortgage Loan": Those certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 11.
"Lembi Portfolio Whole Loan": The Lembi Portfolio Mortgage Loan and
the Lembi Portfolio AB Companion Loan.
"LIBOR": With respect to the Class A-2FL Certificates and each
Interest Accrual Period for which a Class A-2FL Distribution Conversion is not
in effect, the rate for deposits in U.S. Dollars, for a period equal to one
month, which appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m., London
time, on the related LIBOR Determination Date. If such rate does not appear on
the Reuters Screen LIBOR01 Page, the rate for that Interest Accrual Period shall
be determined on the basis of the rates at which deposits in U.S. Dollars are
offered by four major banks in the London interbank market selected by the
Trustee to provide such bank's offered quotation of such rates at approximately
11:00 a.m., London time, on the related LIBOR Determination Date to prime banks
in the London interbank market for a period of one month, commencing on the
first day of such Interest Accrual Period and in an amount that is
representative for a single such transaction in the relevant market at the
relevant time. The Trustee shall request the principal London office of each of
such four banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that Interest Accrual Period shall be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that Interest Accrual Period shall be the arithmetic
mean of the rates quoted by major banks in New York City selected by the
Trustee, at approximately 11:00 a.m., New York City time, on the LIBOR
Determination Date with respect to such Mortgage Loan Accrual Period for loans
in U.S. Dollars to leading European banks for a period equal to one month,
commencing on the first day of such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Trustee shall determine LIBOR for each Interest Accrual
Period and the determination of LIBOR by the Trustee shall be binding absent
manifest error. LIBOR for the initial Interest Accrual Period shall be 5.3200%.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England.
"LIBOR Determination Date": (i) With respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the Master Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01 or acquired by the
Sole Certificateholder in exchange for its Certificates pursuant to Section
9.01; or (vi) such Mortgage Loan is purchased by (a) the applicable Companion
Holder pursuant to or as contemplated by Section 3.18(d) or (b) a mezzanine
lender pursuant to the related mezzanine intercreditor agreement. With respect
to any REO Property (and the related REO Loan), any of the following events: (i)
a Final Recovery Determination is made with respect to such REO Property; (ii)
such REO Property is purchased by the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates
pursuant to Section 9.01; or (iii) such REO Property is purchased by (a) the
applicable Companion Holder pursuant to or as contemplated by Section 3.18(d) or
(b) a mezzanine lender pursuant to the related mezzanine intercreditor
agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
(except with respect to the JQH Hotel Portfolio Mortgaged Property after the JQH
Hotel Portfolio Servicing Transfer Event) pursuant to Section 3.18 (including,
without limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property (except with
respect to the JQH Hotel Portfolio Mortgage Loan or related REO Property after
the JQH Hotel Portfolio Servicing Transfer Event) as to which the Special
Servicer receives (i) a full or discounted payoff (or an unscheduled partial
payment to the extent such prepayment is required by the Special Servicer as a
condition to a workout) with respect thereto from the related Mortgagor or (ii)
any Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to
the related Mortgage Loan or REO Property (in any case, other than amounts for
which a Workout Fee has been paid, or will be payable), equal to the product of
the Liquidation Fee Rate and the proceeds of such full or discounted payoff or
other partial payment or the Liquidation Proceeds or Insurance and Condemnation
Proceeds (net of the related costs and expenses associated with the related
liquidation) related to such liquidated Specially Serviced Mortgage Loan or REO
Property, as the case may be; provided, however, no Liquidation Fee shall be
payable with respect to any event described in (1) clause (iii)(A) of the
definition of "Liquidation Proceeds" if such purchase occurs within the first 90
days after the Special Servicer's initial determination of the fair value of
such Specially Serviced Mortgage Loan, (2) clause (iv) of the definition of
"Liquidation Proceeds" if such repurchase occurs within the time parameters
(including any applicable extension period) set forth in this Agreement and in
the related Mortgage Loan Purchase Agreement or, if such repurchase occurs after
such time period, the Mortgage Loan Seller was acting in good faith to resolve
such breach or defect, (3) clause (v) or clause (vi) of the definition of
"Liquidation Proceeds," (except that a Liquidation Fee will be payable with
respect to any purchase by a mezzanine lender if such purchase does not occur
within the time period provided for in the applicable intercreditor agreement,
or if no such time period is specified, 60 days following the date the related
Mortgage Loan becomes a Specially Serviced Mortgage Loan) or (4) with respect to
any Serviced Securitized Companion Loan, a purchase or repurchase of such
Serviced Securitized Companion Loan under an Other Pooling and Servicing
Agreement (for the avoidance of doubt, a Liquidation Fee payable under this
Agreement, in accordance herewith, may be payable on the entire related Serviced
Whole Loan).
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan through a trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage; (ii)
the realization upon any deficiency judgment obtained against a Mortgagor; (iii)
(A) the purchase of a Defaulted Mortgage Loan by the Majority Controlling Class
Certificateholder, the Special Servicer or the Master Servicer or any of their
assignees pursuant to Section 3.18(a) or (B) any other sale thereof pursuant to
Section 3.18(c) or Section 3.18(e); (iv) the repurchase of a Mortgage Loan by
the applicable Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage Loan or REO
Property by the Holders of the Controlling Class, the Special Servicer, the
Master Servicer or the Holders of the Class LR Certificates pursuant to Section
9.01; or (vi) the purchase of a Mortgage Loan or an REO Property by (A) the
Companion Holder pursuant to Section 3.18(d) or (B) any mezzanine lender of the
related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 1
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 2 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 2 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 1 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 2 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 1 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 2 Principal Distribution Amount).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2, Class A-3, Class A-4 and Class
A-SB Certificates and the Class A-2FL Regular Interest, exceeds (2) the
aggregate amount distributed in respect of principal on the Class A-1, Class A-2
Class A-3, Class A-4 and Class A-SB Certificates and the Class A-2FL Regular
Interest on the prior Distribution Date. There will be no Loan Group 1 Principal
Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 2
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 1 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 1 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 2 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 1 Principal Distribution Amount).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Xxxxx Portfolio Companion Loan Securities": Any class of securities
backed, wholly or partially, by any Xxxxx Portfolio Pari Passu Companion Loan.
"Xxxxx Portfolio Controlling Holders": The "A-1 Noteholder" as
defined in the applicable Xxxxx Portfolio Intercreditor Agreement.
"Xxxxx Portfolio Intercreditor Agreements": The Intercreditor
Agreements, by and among the holders of the Xxxxx Portfolio Notes, relating to
the relative rights of such holders of the applicable Xxxxx Portfolio Whole
Loan, as the same may be further amended in accordance with the terms thereof.
"Xxxxx Portfolio Mortgage Loans": With respect to each Xxxxx
Portfolio Whole Loan, the applicable Mortgage Loan that is included in the Trust
(identified as Mortgage Loan Nos. 248, 251, 252, 253, 255, 257, 258, 259, 260,
261, 262, 263, 264 and 265 on the Mortgage Loan Schedule), each of which is
designated as promissory note A-1 and is pari passu in right of payment with the
applicable Xxxxx Portfolio Pari Passu Companion Loan to the extent set forth in
the related Mortgage Loan documents and as provided in the applicable Xxxxx
Portfolio Intercreditor Agreement.
"Xxxxx Portfolio Mortgaged Property": The Mortgaged Property that
secures the related Xxxxx Portfolio Whole Loan.
"Xxxxx Portfolio Notes": The applicable Xxxxx Portfolio Mortgage
Loan and the related Xxxxx Portfolio Pari Passu Companion Loan.
"Xxxxx Portfolio A-2 Pari Passu Companion Loan": With respect to
each Xxxxx Portfolio Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the applicable Mortgaged Property and
designated as promissory note A-2, which is not included in the Trust and which
is pari passu in right of payment to the applicable Xxxxx Portfolio Mortgage
Loan to the extent set forth in the related Mortgage Loan documents and as
provided in the applicable Xxxxx Portfolio Intercreditor Agreement.
"Xxxxx Portfolio Pari Passu Companion Loan": Each Xxxxx
Portfolio A-2 Pari Passu Companion Loan.
"Xxxxx Portfolio Pari Passu Companion Loan Holder": Each holder of a
Xxxxx Portfolio Pari Passu Companion Loan.
"Xxxxx Portfolio Whole Loan": Each Xxxxx Portfolio Mortgage Loan,
together with the related Xxxxx Portfolio Pari Passu Companion Loan, each of
which is secured by the same Mortgage on the related Xxxxx Portfolio Mortgaged
Property. References herein to any Xxxxx Portfolio Whole Loan shall be construed
to refer to the aggregate indebtedness under the related Xxxxx Portfolio Notes.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Trustee pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Trustee, in trust for the registered Holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP11 Commercial
Mortgage Pass-Through Certificates, Series 0000-XXX00, Xxxxx-Xxxx Distribution
Account." Any such account, accounts or sub-accounts shall be an Eligible
Account.
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Lower-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier REMIC": One of two separate REMICs comprising a portion
of the Trust Fund, the assets of which consist of the Mortgage Loans (other than
Excess Interest), any REO Property with respect thereto (or an allocable portion
thereof, in the case of any Serviced Mortgage Loan), or the Trust Fund's
beneficial interest in the REO Property with respect to the JQH Hotel Portfolio
Whole Loan after the JQH Hotel Portfolio Servicing Transfer Event, such amounts
related thereto as shall from time to time be held in the Certificate Account
(other than with respect to the Companion Loans), the REO Account, if any, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the Lower-Tier
Distribution Account, and all other property included in the Trust Fund that is
not in the Upper-Tier REMIC or the Grantor Trust.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Master Servicer": Wachovia Bank, National Association, and its
successors in interest and assigns, or any successor Master Servicer appointed
as allowed herein.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"MERS": Mortgage Electronic Registration System, Inc.
"Mezz Cap AB Mortgage Loans": The Xxxxx State University Mortgage
Loan and the Four Points By Sheraton Mortgage Loan.
"Mezz Cap AB Mortgage Loan Intercreditor Agreements": The
Intercreditor Agreements related to the Mezz Cap AB Mortgage Loans.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest (other than
Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon
Payment, which is payable (as the terms of the applicable Mortgage Loan or
Companion Loan may be changed or modified in connection with a bankruptcy or
similar proceedings involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to pursuant to
the terms hereof) by a Mortgagor from time to time under the related Mortgage
Note and applicable law, without regard to any acceleration of principal of such
Mortgage Loan or Companion Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer and the Special Servicer, and specific ratings of
Moody's herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.
"Mortgage": With respect to any Mortgage Loan and Companion Loan,
the mortgage, deed of trust or other instrument securing a Mortgage Note and
creating a lien on the fee and/or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of LaSalle Bank
National Association, as trustee for the registered holders of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP11
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP11" or
in blank; provided that the requirements of this clause (i) will be
satisfied by delivery of a signed lost note affidavit and indemnity
properly assigned or endorsed to the Trustee as described above,
with a copy of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon (except for recording information not yet
available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11 Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11" and, in the case of any Serviced
Whole Loan, in its capacity as "lead lender" under the related
Intercreditor Agreement on behalf of the related Companion Holder,
or in blank; provided that, if the related Mortgage has been
recorded in the name of Mortgage Electronic Registration Systems,
Inc. ("MERS") or its designee, no assignment of Mortgage in favor of
the Trustee will be required to be recorded or delivered and
instead, the applicable Mortgage Loan Seller pursuant to the
applicable Mortgage Loan Purchase Agreement shall take all actions
as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm that it is shown
as, and shall provide the Master Servicer and the Special Servicer
with reasonable evidence that it is, the owner of the related
Mortgage on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon (except for recording information not
yet available if the Assignment of Leases or an assignment thereof
has not been returned from the applicable recording office);
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-LDP11 Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11" and, in the case of any Serviced
Whole Loan, in its capacity as "lead lender" under the related
Intercreditor Agreement on behalf of the related Companion Holder,
or in blank; provided that if the related Mortgage has been recorded
in the name of MERS or its designee, no assignment of Assignment of
Leases in favor of the Trustee will be required to be recorded or
delivered and instead, the applicable Mortgage Loan Seller pursuant
to the applicable Mortgage Loan Purchase Agreement shall take all
actions as are necessary to cause the Trustee to be shown as, and
the Trustee shall take all actions necessary to confirm that it is
shown as, and shall provide the Master Servicer and the Special
Servicer with reasonable evidence that it is, the owner of the
related Assignment of Leases on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of
assignments of leases maintained by MERS;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form, executed by the applicable Mortgage Loan Seller to "LaSalle
Bank National Association, as trustee for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-LDP11
Commercial Mortgage Pass-Through Certificates, Series 2007-LDP11"
and, in the case of any Serviced Whole Loan, in its capacity as
"lead lender" under the related Intercreditor Agreement on behalf of
the related Companion Holder; provided, if the related Security
Agreement has been recorded in the name of MERS or its designee, no
assignment of such Security Agreement in favor of the Trustee will
be required to be prepared or delivered and instead, the applicable
Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement shall take all actions as are necessary to cause
the Trustee, on behalf of the Certificateholders, to be shown as
(and the Trustee shall take all necessary actions to confirm that it
is shown as and shall provide the Master Servicer and the Special
Servicer with reasonable evidence that it is) the owner of the
related Security Agreement on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of
security agreements maintained by MERS;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company; provided
the actual policy is issued within eighteen (18) months from the
Closing Date, in connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon, with the exception of filing or recording
information not yet available because the UCC Financing Statement,
assignment or continuation statement, as the case may be, has not
yet been returned from the applicable filing or recording office),
and to transfer such UCC Financing Statements to the Trustee;
provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no UCC Financing Statement in favor of the
Trustee will be required to be recorded or delivered and instead,
the applicable Mortgage Loan Seller pursuant to the applicable
Mortgage Loan Purchase Agreement shall take all actions as are
necessary to cause the Trustee, on behalf of the Certificateholders,
to be shown as, and the Trustee shall take all actions necessary to
confirm that it is shown as, and shall provide the Master Servicer
and the Special Servicer with reasonable evidence that it is, the
secured party on the related UCC Financing Statements on the records
of MERS for purposes of the system of recording transfers of
beneficial ownership of UCC Financing Statements maintained by MERS;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to such Mortgage Loan as set forth in such
intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a certified copy thereof and any
related ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any franchise agreements and comfort letters
related thereto;
(xxi) a copy of any lock-box or cash management agreement(s);
(xxii) a list related to such Mortgage Loan indicating the
related
Mortgage Loan documents included in the related Mortgage File
(the "Mortgage Loan Checklist");
(xxiii) with respect to each Mortgage Loan that has one or
more Companion Loan(s), the related Intercreditor Agreement and a
copy of each Mortgage Note relating to such Companion Loan(s),
rather than the original; and
(xxiv) with respect to the JQH Hotel Portfolio Mortgage Loan,
after the JQH Hotel Portfolio Servicing Transfer Event, a copy of
the BACM 2007-3 Pooling Agreement;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
otherwise described above shall be construed to instead refer to a photocopy of
such Mortgage Note), (d) the execution and/or recordation of any assignment of
Mortgage, any separate assignment of Assignment of Leases and any assignment of
any UCC Financing Statement in the name of the Trustee shall not be construed to
limit the beneficial interest of the related Companion Holder(s) in such
instrument and the benefits intended to be provided to them by such instrument,
it being acknowledged that (i) the Trustee shall hold such record title for the
benefit of the Trust as the holder of the related Mortgage Loan and the related
Companion Holder(s) collectively and (ii) any efforts undertaken by the Trustee,
the Master Servicer, or the Special Servicer on its behalf to enforce or obtain
the benefits of such instrument shall be construed to be so undertaken by
Trustee, the Master Servicer or the Special Servicer for the benefit of the
Trust as the holder of the applicable Mortgage Loan and the related Companion
Holder(s) collectively and (e) with respect to the JQH Hotel Portfolio Mortgage
Loan after the JQH Hotel Portfolio Servicing Transfer Event, the preceding
document delivery requirements will be met by the delivery by the applicable
Mortgage Loan Seller of copies of the documents specified above (other than the
Mortgage Note and intervening endorsements evidencing such Mortgage Loan, with
respect to which the original shall be required), including a copy of the
Mortgage securing the applicable Mortgage Loan.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number (as specified in Annex A-1 to the
Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, county, state and zip
code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining term
to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due (i) with respect to each
Mortgage Loan (other than Mortgage Loans on which only interest is due
prior to a Balloon Payment), on the first Due Date following the Cut-off
Date on which principal is due on such Mortgage Loan and (ii) with respect
to Mortgage Loans on which only interest is due prior to a Balloon
Payment, on the first Due Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or an
Actual/360 Mortgage Loan;
(xiii) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xiv) identifying any Mortgage Loans with which such Mortgage Loan
is cross-defaulted or cross-collateralized;
(xv) the originator of such Mortgage Loan and the Mortgage Loan
Seller;
(xvi) whether such Mortgage Loan has a guarantor;
(xvii) whether such Mortgage Loan is secured by a letter of credit;
(xviii) amount of any reserve or escrowed funds that were deposited
at origination and any ongoing periodic deposit requirements;
(xix) number of grace days;
(xx) whether a cash management agreement or lock-box agreement is in
place;
(xxi) the general property type of the related Mortgaged Property;
(xxii) whether the Mortgage Loan permits defeasance;
(xxiii) [RESERVED]
(xxiv) the applicable Loan Group to which the Mortgage Loan belongs;
(xxv) the Anticipated Repayment Date, if applicable; and
(xxvi) the Revised Rate of such Mortgage Loan, if any.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) AIG, or its successor in
interest and SOME II, or its successor in interest, (2) Eurohypo, or its
successor in interest, (3) JPMorgan, or its successors in interest, (4) Natixis,
or its successors in interest, (5) NCCI, or its successors in interest and (6)
UBS, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; or (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Natixis": Natixis Real Estate Capital Inc., a New York corporation,
or its successor in interest.
"NCCI": Nomura Credit & Capital, Inc., a Delaware corporation, or
its successor in interest.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Master Servicer in its
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to (1) each Certificate
Account, the Servicing Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date and (2) each
Distribution Account, Gain-on-Sale Reserve Account and Interest Reserve Account
for any period from any P&I Advance Date to the immediately succeeding
Distribution Date, the amount, if any, by which the aggregate of all interest
and other income realized during such period on funds relating to the Trust Fund
held in such account, exceeds the aggregate of all losses, if any, incurred
during such period in connection with the investment of such funds in accordance
with Section 3.06.
"Net Investment Loss": With respect to (1) each Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date and (2) each Distribution
Account, Gain-on-Sale Reserve Account and Interest Reserve Account for any
period from any P&I Advance Date to the immediately succeeding Distribution
Date, the amount by which the aggregate of all losses, if any, incurred during
such period in connection with the investment of funds relating to the Trust
Fund held in such account in accordance with Section 3.06, exceeds the aggregate
of all interest and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Master
Servicer or the Special Servicer (or in the case of the JQH Hotel Portfolio
Mortgage Loan, after the JQH Hotel Portfolio Servicing Transfer Event, the BACM
2007-3 Master Servicer or BACM 2007-3 Special Servicer) or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor; provided,
further, if any Mortgage Loan does not accrue interest on the basis of a 360-day
year consisting of twelve 30-day months, then, solely for purposes of
calculating Pass-Through Rates, the Net Mortgage Rate of such Mortgage Loan for
any one-month period preceding a related Due Date will be the annualized rate at
which interest would have to accrue in respect of such Mortgage Loan on the
basis of a 360-day year consisting of twelve 30-day months in order to produce
the aggregate amount of interest actually accrued (exclusive of Default Interest
or Excess Interest) in respect of such Mortgage Loan during such one-month
period at the related Net Mortgage Rate; provided, further, with respect to each
Interest Reserve Loan, the Net Mortgage Rate for the one month period (A)
preceding the Due Dates that occur in January and February in any year which is
not a leap year or preceding the Due Date that occurs in February in any year
which is a leap year (in either case, unless the related Distribution Date is
the final Distribution Date), will be the per annum rate stated in the related
Mortgage Note less the related Administrative Cost Rate, and (B) preceding the
Due Date in March (or February, if the related Distribution Date is the final
Distribution Date) will be determined inclusive of the one day of interest
retained for the immediately preceding February or January, if applicable). With
respect to any REO Loan, the Net Mortgage Rate shall be calculated as described
above, determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Q, Class T, Class NR, Class R, Class S or Class LR
Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is owned
(or may be owned pursuant to the applicable partnership agreement), directly or
indirectly (other than through a corporation that is a U.S. Person) by a
Non-U.S. Person or (B) if such Person is a U.S. Person with respect to whom
income from a Residual Certificate is attributable to a foreign permanent
establishment of fixed base, within the meaning of an applicable income treaty,
of such Person or any other U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided that a Workout-Delayed Reimbursement
Amount shall constitute a Nonrecoverable Advance only when the Person making
such determination in accordance with the procedures specified in the definition
of Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as
applicable, and taking into account factors such as all other outstanding
Advances, either (a) has determined in its reasonable judgment that such
Workout-Delayed Reimbursement Amount would not ultimately be recoverable
(including interest on such Advance) from Late Collections, Insurance Proceeds
or Liquidation Proceeds, or any other recovery on or in respect of the related
Mortgage Loan or REO Loan, or (b) has determined in accordance with the
Servicing Standards or such other applicable standard that such Workout-Delayed
Reimbursement Amount, along with any other Workout-Delayed Reimbursement Amounts
and Nonrecoverable Advances, would not ultimately be recovered from aggregate
principal collections in respect of the pool of the Mortgage Loans or REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Master Servicer or the Trustee, as applicable, will
not be ultimately recoverable, together with any accrued and unpaid interest
thereon at the Reimbursement Rate, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Loan; provided, however, the
Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standards, that any P&I Advance previously made or proposed to be made is a
Nonrecoverable P&I Advance and shall deliver to the Master Servicer or the
Trustee (and with respect to any Serviced Mortgage Loan, to any Other Servicer,
and with respect to the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel
Portfolio Servicing Transfer Event, to the BACM 2007-3 Master Servicer) notice
of such determination. Any such determination shall be conclusive and binding on
the Master Servicer and the Trustee; provided, however, the Special Servicer
shall have no such obligation to make an affirmative determination that any P&I
Advance is or would be nonrecoverable, and in the absence of a determination by
the Special Servicer that such P&I Advance is a Nonrecoverable P&I Advance, such
decision shall remain with the Master Servicer or Trustee, as applicable. In
making such recoverability determination, the Master Servicer, Special Servicer
or Trustee, as applicable, will be entitled (a) to consider (among other things)
(i) the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified and (ii) the related Mortgaged Properties in
their "as is" or then current conditions and occupancies, as modified by such
party's assumptions (consistent with the Servicing Standards in the case of the
Master Servicer and the Special Servicer or its good faith business judgment in
the case of the Trustee) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, (b) to estimate and consider
(among other things) future expenses (consistent with the Servicing Standards in
the case of the Master Servicer and the Special Servicer or in its good faith
business judgment in the case of the Trustee) among other things and the timing
of recoveries and (c) to give due regard to the existence of any Nonrecoverable
Advances which, at the time of such consideration, the recovery of which are
being deferred or delayed by either Master Servicer, in light of the fact that
related recoveries on or in respect of such Mortgage Loan are a source of
recovery not only for the Advance under consideration but also a potential
source of recovery for such delayed or deferred Advance. In addition, any
Person, in considering whether a P&I Advance is a Nonrecoverable Advance, will
be entitled to give due regard to the existence of any outstanding
Nonrecoverable Advance or Workout Delayed Reimbursement Amount with respect to
other Mortgage Loans which, at the time of such consideration, the reimbursement
of which is being deferred or delayed by the Master Servicer or the Trustee
because there is insufficient principal available for such reimbursement, in
light of the fact that proceeds on the related Mortgage Loan are a source of
reimbursement not only for the P&I Advance under consideration, but also as a
potential source of reimbursement of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amounts which are or may be being deferred or
delayed. In addition, any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that an Advance is a Nonrecoverable Advance) and, consistent with the Servicing
Standards in the case of the Master Servicer, or in its good faith business
judgment in the case of the Trustee, may obtain, promptly upon request, from the
Special Servicer any reasonably required analysis, Appraisals or market value
estimates or other information in the Special Servicer's possession for making a
recoverability determination. Absent bad faith, the Master Servicer's, Special
Servicer's or the Trustee's determination as to the recoverability of any P&I
Advance shall be conclusive and binding on the Certificateholders. The
determination by the Master Servicer or the Special Servicer or the Trustee, as
applicable, that the Master Servicer or the Trustee, as the case may be, has
made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I Advance, or any updated or changed
recoverability determination, shall be evidenced by an Officer's Certificate
delivered by either the Special Servicer or the Master Servicer to the other and
to the Trustee, the Directing Certificateholder (and in the case of any Serviced
Mortgage Loan, any Other Servicer), the Depositor, or by the Trustee to the
Depositor, the Master Servicer, the Special Servicer and the Directing
Certificateholder (and in the case of any Serviced Mortgage Loan, any Other
Servicer). The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Master Servicer, the Special
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall be accompanied by, to the extent available, income and expense
statements, rent rolls, occupancy status, property inspections and any other
information used by the Master Servicer, the Special Servicer or the Trustee, as
applicable, to make such determination and shall include any existing Appraisal
of the related Mortgage Loan or Mortgaged Property). The Trustee shall be
entitled to conclusively rely on and be bound by the Master Servicer's or
Special Servicer's determination that a P&I Advance is or would be
nonrecoverable, and the Master Servicer shall be entitled to conclusively rely
on and be bound by the Special Servicer's determination that a P&I Advance is or
would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan,
such recoverability determination shall take into account the
cross-collateralization of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than the JQH
Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer
Event) or REO Property which, in the reasonable judgment of the Master Servicer,
the Special Servicer or the Trustee, as the case may be, will not be ultimately
recoverable, together with any accrued and unpaid interest thereon, at the
Reimbursement Rate, from Late Collections or any other recovery on or in respect
of such Mortgage Loan or REO Property. In making such recoverability
determination, such Person will be entitled to consider (among other things)
only the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified, to consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
Servicing Standards in the case of the Master Servicer or the Special Servicer
or in its good faith business judgment in the case of the Trustee) regarding the
possibility and effects of future adverse change with respect to such Mortgaged
Properties, to estimate and consider (consistent with the Servicing Standards in
the case of the Master Servicer or the Special Servicer or in its good faith
business judgment in the case of the Trustee) (among other things) future
expenses and to estimate and consider (among other things) the timing of
recoveries. In addition, any Person, in considering whether a Servicing Advance
is a Nonrecoverable Servicing Advance, will be entitled to give due regard to
the existence of any Nonrecoverable Advance or Workout Delayed Reimbursement
Amounts with respect to other Mortgage Loans which, at the time of such
consideration, the recovery of which are being deferred or delayed by the Master
Servicer, in light of the fact that proceeds on the related Mortgage Loan are a
source of recovery not only for the Servicing Advance under consideration, but
also as a potential source of recovery of such Nonrecoverable Advance or Workout
Delayed Reimbursement Amounts which are or may be being deferred or delayed. In
addition, any such Person may update or change its recoverability determinations
at any time (but not reverse any other Person's determination that an Advance is
a Nonrecoverable Advance) and, consistent with the Servicing Standards, in the
case of the Master Servicer, may obtain, promptly upon request, from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for making a
recoverability determination. The determination by the Master Servicer, the
Special Servicer or the Trustee, as the case may be, that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, or any updated or
changed recoverability determination, shall be evidenced by an Officer's
Certificate delivered by either of the Special Servicer or the Master Servicer
to the other and to the Trustee, the Directing Certificateholder and in the case
of any Serviced Mortgage Loan, any Other Servicer, and the Depositor, or by the
Trustee to the Depositor, the Master Servicer, the Special Servicer and the
Directing Certificateholder and in the case of any Serviced Mortgage Loan, any
Other Servicer; provided, however, the Special Servicer may, at its option, in
consultation with the Directing Certificateholder, make a determination in
accordance with the Servicing Standards, that any Servicing Advance previously
made or proposed to be made is a Nonrecoverable Servicing Advance and shall
deliver to the Master Servicer and the Trustee notice of such determination. Any
such determination shall be conclusive and binding on the Master Servicer, the
Special Servicer and the Trustee; provided, however, the Special Servicer shall
have no such obligation to make an affirmative determination that any Servicing
Advance is or would be nonrecoverable, and in the absence of a determination by
the Special Servicer that such Advance is a Nonrecoverable Servicing Advance,
such decision shall remain with the Master Servicer or Trustee, as applicable.
The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Master Servicer, the Special
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall be accompanied by, to the extent available, related income and
expense statements, rent rolls, occupancy status and property inspections, and
shall include any existing Appraisal of the related Mortgage Loan or Mortgaged
Property). The Special Servicer shall promptly furnish any party required to
make Servicing Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make Servicing Advances may reasonably request for purposes of
making recoverability determinations. The Trustee shall be entitled to
conclusively rely on the Master Servicer's or Special Servicer's, as the case
may be, determination that a Servicing Advance is or would be nonrecoverable,
and the Master Servicer shall be entitled to conclusively rely on the Special
Servicer's determination that a Servicing Advance is or would be nonrecoverable.
In the case of a cross-collateralized Mortgage Loan, such recoverability
determination shall take into account the cross-collateralization of the related
cross-collateralized Mortgage Loan. After the JQH Hotel Portfolio Servicing
Transfer Event, the determination as to the recoverability of any servicing
advance previously made or proposed to be made in respect of the JQH Hotel
Portfolio Whole Loan shall be made by the BACM 2007-3 Master Servicer, the BACM
2007-3 Special Servicer or the BACM 2007-3 Trustee, as the case may be, pursuant
to the BACM 2007-3 Pooling Agreement.
"Notional Amount": In the case of the Class X Certificates, the
Class X Notional Amount. In the case of each Component, the amount set forth in
the applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2, Class A-2FL, Class
X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class X, Class A-M, Class A-J, Class B,
Class C, Class D, Class E and Class F Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable in form and delivered to the Trustee, except that
any opinion of counsel relating to (a) the qualification of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, (b) compliance with the REMIC Provisions,
(c) qualification of the Grantor Trust as a grantor trust under subpart E, Part
I of subchapter J of the Code for federal income tax purposes or (d) the
resignation of the Master Servicer, the Special Servicer or the Depositor
pursuant to Section 6.04, must be an opinion of counsel who is in fact
Independent of the Depositor, the Master Servicer or the Special Servicer, as
applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class S, Class X and the Residual Certificates) and
the Class A-2FL Regular Interest, the initial aggregate principal amount thereof
as of the Closing Date, in each case as specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X Notional
Amount, the initial Notional Amount thereof as of the Closing Date, as specified
in the Preliminary Statement.
"Other Pooling and Servicing Agreement": Any pooling and servicing
agreement or other agreement that creates a trust fund whose assets include any
Xxxxxxxx Xxxxx Pari Passu Companion Loan, any ChampionsGate Pari Passu Companion
Loan, the JQH Hotel Portfolio Pari Passu Companion Loan, the Carespring
Portfolio Pari Passu Companion Loan or any Xxxxx Portfolio Pari Passu Companion
Loan.
"Other Securitization": As defined in Section 11.06.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement or other agreement related thereto.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.03
or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the close of business on the related Determination Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-2FL Pass-Through Rate, the Class A-2FL
Regular Interest Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class
A-4 Pass-Through Rate, the Class A-SB Pass-Through Rate, the Class A-1A
Pass-Through Rate, the Class A-M Pass-Through Rate, the Class A-J Pass-Through
Rate, the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D
Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate,
the Class G Pass-Through Rate, the Class H Pass-Through Rate, the Class J
Pass-Through Rate, the Class K Pass-Through Rate, the Class L Pass-Through Rate,
the Class M Pass-Through Rate, the Class N Pass-Through Rate, the Class P
Pass-Through Rate, the Class Q Pass-Through Rate, the Class T Pass-Through Rate,
the Class NR Pass-Through Rate or the Class X Pass-Through Rate.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan) or Companion Loan (or successor REO Loan), any amounts actually
collected thereon (or, in the case of a Companion Loan (or successor REO Loan
thereto), actually collected on such Companion Loan and allocated and paid on
such Companion Loan (or successor REO Loan) in accordance with the related
Intercreditor Agreement) that represent late payment charges or Default
Interest, other than a Yield Maintenance Charge, and other than any Excess
Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or Original Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Class S
Certificate and a Residual Certificate, the percentage interest is set forth on
the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee,
if otherwise qualifying hereunder), regardless whether issued by the Depositor,
the Master Servicer, the Special Servicer, the Trustee or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Class of Certificates (or, insofar as there is then
outstanding any class of Companion Loan Securities that is then
rated by such Rating Agency, such class of securities) as evidenced
in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short- term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each
Rating Agency or such lower rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates (or
insofar as there is then outstanding any class of Companion Loan
Securities that is then rated by such Rating Agency, such class of
securities) as evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then current rating assigned by each Rating
Agency to any Class of Certificates (or insofar as there is then
outstanding any class of Companion Loan Securities that is then
rated by such Rating Agency, such class of securities) as evidenced
in writing; provided, however, securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held in the accounts
established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non interest bearing
discount obligations and interest bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned by each Rating Agency to any Class of Certificates (or
insofar as there is then outstanding any class of Companion Loan
Securities that is then rated by such Rating Agency, such class of
securities) as evidenced in writing;
(vi) money market funds, rated in the highest rating
categories of each Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then current rating assigned by such Rating Agency to any Class of
Certificates (or insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency,
such class of securities) as evidenced in writing and (b) which
qualifies as a "cash flow investment" pursuant to Section 860G(a)(6)
of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, no amount beneficially
owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet deposited
in the Trust) may be invested in investments (other than money market funds)
treated as equity interests for federal income tax purposes, unless the Master
Servicer receives an Opinion of Counsel, at its own expense, to the effect that
such investment will not adversely affect the status of the Upper-Tier REMIC or
the Lower-Tier REMIC. Permitted Investments that are subject to prepayment or
call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person or agent thereof who is a
Qualified Institutional Buyer other than a Disqualified Organization, an ERISA
Prohibited Holder or a Non-U.S. Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees
and any Excess Interest), to the extent collected from the related Mortgagor
(without regard to any prepayment premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such prepayment from and after such Due Date and ending
on the date of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Master
Servicer from the Servicing Fee to each Initial Sub-Servicer, which monthly fee
accrues at the rate per annum specified as such in the Sub-Servicing Agreement
with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York City edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, an amount equal to the sum
of (a) the Principal Shortfall for such Distribution Date, (b) the Scheduled
Principal Distribution Amount for such Distribution Date and (c) the Unscheduled
Principal Distribution Amount for such Distribution Date; provided that the
Principal Distribution Amount for any Distribution Date shall be reduced by the
amount of any reimbursements of (i) Nonrecoverable Advances plus interest on
such Nonrecoverable Advances that are paid or reimbursed from principal
collections on the Mortgage Loans in a period during which such principal
collections would have otherwise been included in the Principal Distribution
Amount for such Distribution Date and (ii) Workout-Delayed Reimbursement Amounts
that were paid or reimbursed from principal collections on the Mortgage Loans in
a period during which such principal collections would have otherwise been
included in the Principal Distribution Amount for such Distribution Date
(provided, that, in the case of clause (i) and (ii) above, if any of the amounts
that were reimbursed from principal collections on the Mortgage Loans are
subsequently recovered on the related Mortgage Loan, such recovery will increase
the Principal Distribution Amount for the Distribution Date related to the
period in which such recovery occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class X-0, Xxxxx X-0, Class X-0, Xxxxx X-0, Class A-SB, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class
T and Class NR Certificates and the Class A-2FL Regular Interest for such
preceding Distribution Date pursuant to Section 4.01(a) on such preceding
Distribution Date. The Principal Shortfall for the initial Distribution Date
will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchasers, each Mortgage
Loan Seller and certain financial market publishers (which initially shall be
Bloomberg, L.P., Xxxxx, LLC and Intex Solutions LLC), any Companion Holder, each
party to this Agreement, the Swap Counterparty, the Directing Certificateholder,
any designee of the Depositor and any other Person who shall have provided the
Trustee with a certificate, using the form attached hereto as Exhibit S, which
form is available from the Trustee, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated March, 9, 2007, as supplemented
by the Prospectus Supplement dated June 28, 2007, relating to the offering of
the Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18 (a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the Master Servicer pursuant to
Section 3.18(b), by the Master Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(d), a price equal
to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default Interest and Excess Interest) to
but not including the Due Date immediately preceding the
Determination Date for the related Distribution Date (or, in the
case of any Mortgage Loan for which the Due Date occurs on any day
other than the first day of each month, to but not including the Due
Date occurring in the month in which such Due Period ends) as to
which such Purchase Price is included in the Available Distribution
Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Master
Servicer, the Special Servicer, the Depositor and the Trustee in
respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation, including, without limitation, all legal
fees and expenses relating to the enforcement of such repurchase
obligations; plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c),
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Serviced Whole Loan, the term "REO Loan" shall mean the REO Loan with respect to
both the related Mortgage Loan and the related Companion Loan(s).
Notwithstanding the foregoing, with respect to any AB Whole Loan, the "Purchase
Price" to be paid by the holder of the related Companion Loan shall be the
"Defaulted Mortgage Loan Purchase Price" specified in the related Intercreditor
Agreement.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
(a) "Qualified Insurer": (i) With respect to any Mortgage Loan, REO
Loan or REO Property, an insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction
with an insurance financial strength rating of at least "A3" by Xxxxx'x and "A-"
by S&P (or, if not rated by Xxxxx'x, then at least "A-" by one other nationally
recognized insurance rating organization (which may include A.M. Best Company))
and (ii) with respect to the fidelity bond and errors and omissions Insurance
Policy required to be maintained pursuant to Section 3.07(c), except as set
forth in Section 3.07(c), an insurance company that has an insurance financial
strength rating (in the case of ratings by Xxxxx'x) or a claims paying ability
(in the case of ratings by S&P) rated no lower than two ratings below the rating
assigned to the then highest rated outstanding Certificate, but in no event
lower than "A3" by Xxxxx'x and"A-" by S&P (or, if not rated by one of such
Rating Agencies, then at least "A" by two other nationally recognized
statistical rating organizations (which may include the other Rating Agencies))
or, in the case of clauses (i) and (ii), such other rating as each Rating Agency
shall have confirmed in writing will not cause such Rating Agency to downgrade,
qualify or withdraw the then current rating assigned by such Rating Agency to
any Class of Certificates (or insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency, such class
of securities) as evidenced in writing; provided, however, an insurance carrier
shall be deemed to have the applicable financial strength or claims-paying
ability ratings set forth above if the obligations of such insurance carrier
under the related insurance policy are guaranteed or backed in writing by an
entity that has long-term unsecured debt obligations that are rated not lower
than the ratings set forth above or claims-paying ability ratings that are not
lower than the ratings set forth above.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan-to-value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current
loan-to-value ratio not higher than the then current loan-to-value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of any
of the REMICs established under this Agreement or the imposition of tax on any
of such REMICs other than a tax on income expressly permitted or contemplated to
be imposed by the terms of this Agreement, as determined by an Opinion of
Counsel; (xvii) have an engineering report with respect to the related Mortgaged
Property that will be delivered as a part of the related Servicing File, and
(xviii) be current in the payment of all scheduled payments of principal and
interest then due. In the event that more than one mortgage loan is substituted
for a deleted Mortgage Loan, then the amounts described in clause (i) shall be
determined on the basis of aggregate Stated Principal Balances and each such
proposed Qualified Substitute Mortgage Loan shall individually satisfy each of
the requirements specified in (ii) through (xviii) except that the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis;
provided that no individual Mortgage Rate (net of the Servicing Fee Rate and the
Trustee Fee Rate) shall be lower than the highest fixed Pass-Through Rate (and
not subject to a cap equal to the Weighted Average Net Mortgage Rate) of any
class of Regular Certificates (other than the Class A-2FL Certificates) or the
Class A-2FL Regular Interest having a principal balance then outstanding. When a
Qualified Substitute Mortgage Loan is substituted for a deleted Mortgage Loan,
(i) the applicable Mortgage Loan Seller shall certify that the Mortgage Loan
meets all of the requirements of the above definition and shall send such
certification to the Trustee and the Directing Certificateholder and (ii) such
Qualified Substitute Mortgage Loan shall become part of the same Loan Group as
the deleted Mortgage Loan.
"Rated Final Distribution Date": As to each Class of Certificates,
June 15, 2049.
"Rating Agency": Each of Xxxxx'x and S&P, or their successors in
interest, and, if applicable, any rating agency rating the Companion Loan
Securities. If neither such rating agency nor any successor remains in
existence, "Rating Agency" shall be deemed to refer to such nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Special Servicer and the Master Servicer, and specific ratings of Xxxxx'x and
S&P herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Rating Agency Trigger Event": The reduction of the Swap
Counterparty's long-term ratings below "A3" or "A-" by Xxxxx'x or S&P,
respectively.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class T, Class NR and Class X
Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in Section
11.15.
"Regulation AB Servicing Officer": Any officer or employee of the
Master Servicer or the Special Servicer, as applicable, involved in, or
responsible for, the administration and servicing of the Mortgage Loans or
Companion Loans, or this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee by the Master
Servicer or the Special Servicer, as applicable, as such list may from time to
time be amended.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Trustee as custodian for the
Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates or the Class A-2FL Regular Interest, as
applicable, the related Class of Uncertificated Lower-Tier Interests and the
related Components of Class X Certificates; for the following Components of the
Class X Certificates, the related Class of Uncertificated Lower-Tier Interests
and the related Class of Certificates or the Class A-2FL Regular Interest, as
applicable, set forth below; and for the following Classes of Uncertificated
Lower-Tier Interests, the related Components of the Class X Certificates and the
related Class of Certificates or the Class A-2FL Regular Interest, as
applicable, set forth below:
Related Uncertificated Related Components of
Related Certificate Lower-Tier Interest Class X Certificates
-------------------------------- ------------------------------------- -----------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest XA-1
Class A-1A Certificate Class LA-1A Uncertificated Interest XA-1A
Class A-2 Certificate Class LA-2 Uncertificated Interest XA-2
Class A-2FL Regular Interest Class LA-2FL Uncertificated Interest XA-2FL
Class A-3 Certificate Class LA-3 Uncertificated Interest XA-3
Class A-4 Certificate Class LA-4 Uncertificated Interest XA-4
Class A-SB Certificate Class LA-SB Uncertificated Interest XA-SB
Class A-M Certificate Class LA-M Uncertificated Interest XA-M
Class A-J Certificate Class LA-J Uncertificated Interest XA-J
Class B Certificate Class LB Uncertificated Interest XB
Class C Certificate Class LC Uncertificated Interest XC
Class D Certificate Class LD Uncertificated Interest XD
Class E Certificate Class LE Uncertificated Interest XE
Class F Certificate Class LF Uncertificated Interest XF
Class G Certificate Class LG Uncertificated Interest XG
Class H Certificate Class LH Uncertificated Interest XH
Class J Certificate Class LJ Uncertificated Interest XJ
Class K Certificate Class LK Uncertificated Interest XK
Class L Certificate Class LL Uncertificated Interest XL
Class M Certificate Class LM Uncertificated Interest XM
Class N Certificate Class LN Uncertificated Interest XN
Class P Certificate Class LP Uncertificated Interest XP
Class Q Certificate Class LQ Uncertificated Interest XQ
Class T Certificate Class LT Uncertificated Interest XT
Class NR Certificate Class LNR Uncertificated Interest XNR
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders and with respect to any Serviced
Whole Loans, the related Companion Holders, which shall be entitled CWCapital
Asset Management LLC, or the applicable successor Special Servicer, as Special
Servicer, for the benefit of LaSalle Bank National Association, as trustee, in
trust for registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-LDP11 Commercial Mortgage Pass-Through Certificates, Series
2007-LDP11, REO Account." Any such account or accounts shall be an Eligible
Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan or Companion Loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Loan shall
be deemed to be outstanding for so long as the related REO Property (or
beneficial interest therein, in the case of the JQH Hotel Portfolio Mortgage
Loan after the JQH Hotel Portfolio Servicing Transfer Event) remains part of the
Trust Fund and provides for Assumed Scheduled Payments on each Due Date
therefor, and otherwise has the same terms and conditions as its predecessor
Mortgage Loan or Companion Loan, including, without limitation, with respect to
the calculation of the Mortgage Rate in effect from time to time (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan or Companion Loan). Each REO Loan shall be deemed to have an
initial outstanding principal balance and Stated Principal Balance equal to the
outstanding principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan or Companion Loan as of the date of the related REO
Acquisition. All amounts due and owing in respect of the predecessor Mortgage
Loan or Companion Loan as of the date of the related REO Acquisition, including,
without limitation, accrued and unpaid interest, shall continue to be due and
owing in respect of a REO Loan. All amounts payable or reimbursable to the
Master Servicer, the Special Servicer or the Trustee, as applicable, in respect
of the predecessor Mortgage Loan or Companion Loan as of the date of the related
REO Acquisition, including, without limitation, any unpaid Special Servicing
Fees and Servicing Fees and any unreimbursed Advances, additional Trust Fund
expenses, together with any interest accrued and payable to the Master Servicer
or the Trustee, as applicable, in respect of such Advances in accordance with
Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable
to the Master Servicer or the Trustee, as applicable, in respect of an REO Loan.
In addition, Unliquidated Advances and Nonrecoverable Advances with respect to
such REO Loan, in each case, that were paid from collections on the Mortgage
Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso in the definition of "Principal
Distribution Amount", "Loan Group 1 Principal Distribution Amount" or "Loan
Group 2 Principal Distribution Amount" shall be deemed outstanding until
recovered. Collections in respect of each REO Loan (exclusive of the amounts to
be applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of unreimbursed Advances and interest thereon
and the costs of operating, managing, selling, leasing and maintaining the
related REO Property) shall be treated: first, as a recovery of accrued and
unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to, but not including, the Due Date in the Due Period of receipt
(exclusive of any portion that constitutes Excess Interest); second, as a
recovery of Unliquidated Advances with respect to such REO Loan; third, as a
recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; fourth, as a recovery of Nonrecoverable Advances with respect
to such REO Loan; and fifth, in accordance with the Servicing Standards of the
Master Servicer, as a recovery of any other amounts due and owing in respect of
such REO Loan, including, without limitation, (i) Penalty Charges, (ii) Yield
Maintenance Charges and (iii) Excess Interest and other amounts, in that order;
provided that if the JQH Hotel Portfolio Mortgage Loan and the related Companion
Loan comprising the related Whole Loan become REO Loans after the JQH Hotel
Portfolio Servicing Transfer Event, the treatment of the foregoing amounts with
respect to the JQH Hotel Portfolio Whole Loan shall be subject to the terms of
the JQH Hotel Portfolio Intercreditor Agreement and the BACM 2007-3 Pooling
Agreement, and provided, further that if any Serviced Mortgage Loan and the
related Companion Loan(s) comprising the related Serviced Whole Loan become REO
Loans, the treatment of the foregoing amounts with respect to such Serviced
Whole Loan shall be subject to the terms of the applicable Intercreditor
Agreement and this Agreement.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement with respect to a Mortgaged Property
securing a Serviced Whole Loan) and the Trustee (as holder of the Class A-2FL
Regular Interest and the Uncertificated Lower-Tier Interests) (and also
including, after the JQH Hotel Portfolio Servicing Transfer Event, if
applicable, the Trust Fund's beneficial interest in the JQH Hotel Portfolio
Mortgaged Property acquired by the BACM 2007-3 Special Servicer on behalf of,
and in the name of, the BACM 2007-3 Trustee or a nominee thereof for the benefit
of the certificateholders under the BACM 2007-3 Trust) through foreclosure,
acceptance of a deed-in-lieu of foreclosure or otherwise in accordance with
applicable law in connection with the default or imminent default of a Mortgage
Loan. For avoidance of doubt, after the JQH Hotel Portfolio Servicing Transfer
Event, references herein to the Special Servicer acquiring, maintaining,
managing, inspecting, insuring, selling or reporting any Appraisal Reductions
and Final Recovery Determinations with respect to an "REO Property", shall not
include the Trust Fund's beneficial interest in the JQH Hotel Portfolio
Mortgaged Property. For the avoidance of doubt, REO Property, to the extent
allocable to a Companion Loan, shall not be an asset of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property (other than the JQH Hotel
Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing Transfer
Event).
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": The Master Servicer, the Special Servicer, the
Trustee or a Servicing Function Participant engaged by any such party, as the
case may be.
"Request for Release": A release signed by a Servicing Officer of
the Master Servicer or the Special Servicer, as applicable, in the form of
Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial
Trustee, any Vice President, Assistant Vice-President, Assistant Secretary or
corporate trust officer in the corporate trust department of the Trustee, and
with respect to any successor Trustee, any officer or assistant officer in the
Global Securities and Trust Services department of the successor Trustee or any
other officer of the successor Trustee customarily performing functions similar
to those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If S&P or any successor
remains in existence, "S&P" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Master Servicer and the Special Servicer and specific ratings of S&P herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Xxxxxxxx-Xxxxx Act": means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.05(a)(iv).
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of such Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, prior to, the related Due Period, and all Assumed
Scheduled Payments for the related Due Period, in each case to the extent either
(i) paid by the Mortgagor as of the Determination Date (or, with respect to each
Mortgage Loan with a Due Date occurring or a grace period ending after the
related Determination Date, the related Due Date or last day of such grace
period, as applicable, to the extent received by the Master Servicer as of the
Business Day preceding the related P&I Advance Date) (and not previously
distributed to Certificateholders) or (ii) advanced by the Master Servicer or
the Trustee, as applicable, pursuant to Section 4.03 in respect of such
Distribution Date, and (b) all Balloon Payments to the extent received on or
prior to the related Determination Date (or, with respect to each Mortgage Loan
with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the Master Servicer as of the Business Day
preceding the related P&I Advance Date), and to the extent not included in
clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Service(s)" or "Servicing": In accordance with Regulation AB, the
act of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"Serviced Mortgage Loan": Each Mortgage Loan, including, with
respect to the Whole Loans, each of the Xxxxxxxx Xxxxx Mortgage Loan,
ChampionsGate Mortgage Loan, Carespring Portfolio Mortgage Loan, Xxxxx Portfolio
Mortgage Loans, the AB Mortgage Loans and the JQH Hotel Portfolio Mortgage Loan
(prior to the JQH Hotel Portfolio Servicing Transfer Event).
"Serviced Pari Passu Companion Loan": Each of the Xxxxxxxx Xxxxx
Pari Passu Companion Loan, ChampionsGate Pari Passu Companion Loan, the
Carespring Portfolio Pari Passu Companion Loan, the Xxxxx Portfolio Pari Passu
Companion Loans and the JQH Hotel Portfolio Pari Passu Companion Loan (prior to
the JQH Hotel Portfolio Servicing Transfer Event).
"Serviced Securitized Companion Loan": Any Companion Loan that is a
component of a Serviced Whole Loan, if and for so long as each such companion
mortgage loan is included in a Regulation AB Companion Loan Securitization.
"Serviced Whole Loan": Each of the AB Whole Loans and the Xxxxxxxx
Xxxxx Whole Loan, the ChampionsGate Whole Loan, the Carespring Portfolio Whole
Loan, the Xxxxx Portfolio Whole Loans and the JQH Hotel Portfolio Whole Loan
(prior to the JQH Hotel Portfolio Servicing Transfer Event).
"Serviced Whole Loan Controlling Holder": With respect to the
Xxxxxxxx Xxxxx Whole Loan, the Xxxxxxxx Xxxxx Controlling Holder, with respect
to the ChampionsGate Whole Loan, the ChampionsGate Controlling Holder, with
respect to the Carespring Portfolio Whole Loan, the Carespring Portfolio
Controlling Holder, with respect to the Xxxxx Portfolio Whole Loans, the Xxxxx
Portfolio Controlling Holders, with respect to the JQH Hotel Portfolio Whole
Loan prior to the JQH Hotel Portfolio Servicing Transfer Event, the JQH
Portfolio Controlling Holder, with respect to the Lembi Portfolio Whole Loan,
the Lembi Portfolio Controlling Holder, with respect to the Stadium Towers Whole
Loan, the Stadium Towers Controlling Holder, with respect to the 000 Xxxxx
Xxxxxx Whole Loan, the 500 Xxxxx Center Controlling Holder, with respect to the
Edentree Apartment Village Whole Loan, the Edentree Apartment Village
Controlling Holder, with respect to the Squire Hill Apartments Whole Loan, the
Squire Hill Apartments Controlling Holder, with respect to the Foothill Xxxx
Apartments Whole Loan, the Foothill Xxxx Apartments Controlling Holder, with
respect to the Four Points by Sheraton Whole Loan, the Four Points by Sheraton
Controlling Holder, and with respect to the Xxxxx State University Whole Loan,
the Xxxxx State University Controlling Holder.
"Serviced Whole Loan Intercreditor Agreement": Each of the Xxxxxxxx
Xxxxx Intercreditor Agreement, the ChampionsGate Intercreditor Agreement, the
Carespring Portfolio Intercreditor Agreement, the Xxxxx Portfolio Intercreditor
Agreements, the JQH Hotel Portfolio Intercreditor Agreement (prior to the JQH
Hotel Portfolio Servicing Transfer Event), Lembi Portfolio Intercreditor
Agreement, the Stadium Towers Intercreditor Agreement, the 000 Xxxxx Xxxxxx
Intercreditor Agreement, the Edentree Apartment Village Intercreditor Agreement,
the Squire Hill Apartments Intercreditor Agreement, the Foothill Xxxx Apartments
Intercreditor Agreement, the Four Points by Sheraton Intercreditor Agreement and
the Xxxxx State University Intercreditor Agreement.
"Serviced Whole Loan Remittance Date": With respect to each Serviced
Whole Loan, the date payments are required to be made to the holder of the
related Companion Loan under the related Serviced Whole Loan Intercreditor
Agreement or, if no such "remittance date" is specified, the P&I Advance Date
(but in no event earlier than one Business Day following receipt).
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Master Servicer, the Special Servicer or
the Trustee, as applicable, in connection with the servicing and administering
of (a) a Mortgage Loan (other than the JQH Hotel Portfolio Mortgage Loan after
the JQH Hotel Portfolio Servicing Transfer Event) (and, in the case of a
Serviced Whole Loan, the related Companion Loan(s)) in respect of which a
default, delinquency or other unanticipated event has occurred or as to which a
default is reasonably foreseeable or (b) an REO Property, including (in the case
of each of such clause (a) and clause (b)), but not limited to, (x) the cost of
(i) compliance with the Master Servicer's obligations set forth in Section
3.03(c), (ii) the preservation, restoration and protection of a Mortgaged
Property, (iii) obtaining any Insurance and Condemnation Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(iv) of the
definition of "Liquidation Proceeds," (iv) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including foreclosures and (v)
the operation, leasing, management, maintenance and liquidation of any REO
Property and (y) any amount specifically designated herein to be paid as a
"Servicing Advance". Notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer or the
Special Servicer, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses and similar internal
costs and expenses or costs and expenses incurred by any such party in
connection with its purchase of a Mortgage Loan or REO Property.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time and which as
of the Closing Date are listed on Exhibit U hereto.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the Master Servicer pursuant to the first
paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the Master Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan, (a) the Stated Principal Balance of such Mortgage Loan
as of the end of the immediately preceding Due Period and (b) the difference
between the Servicing Fee Rate for such Mortgage Loan over the servicing fee
rate (if any) applicable to such Mortgage Loan as specified in any Sub-Servicing
Agreement related to such Mortgage Loan. With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated Principal Balance of such Mortgage Loan as of the end of the immediately
preceding Due Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan (and with respect to the JQH Hotel Portfolio Mortgage Loan after the JQH
Hotel Portfolio Servicing Transfer Event, solely for the purposes of calculating
the Administrative Cost Rate under this Agreement and not for calculating the
Servicing Fee), a rate equal to the per annum rate set forth on the Mortgage
Loan Schedule under the heading "Servicing Fee Rate," in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan. With
respect to each Companion Loan, the rate payable to the Master Servicer with
respect to the related Mortgage Loan to the extent not inconsistent with the
related Intercreditor Agreement. After the JQH Hotel Portfolio Servicing
Transfer Event, the "Servicing Fee Rate" (to be used to calculate the Servicing
Fee payable to the Master Servicer hereunder) with respect to the JQH Hotel
Portfolio Mortgage Loan is 0.01% per annum (and the BACM 2007-3 Master Servicer
will be entitled to a primary servicing fee with respect to the JQH Hotel
Portfolio Mortgage Loan, based on a rate of 0.01% per annum). With respect to
each Companion Loan set forth below, the per annum rate is as set forth opposite
its name.
Companion Loan Rate
-------------------------------------------------------- -------------------
000 Xxxxx Xxxxxx XX Companion Loan 0.01%
Edentree Apartment Village AB Companion Loan 0.01%
Foothill Xxxx Apartments AB Companion Loan 0.01%
Lembi Portfolio AB Companion Loan 0.01%
Stadium Towers AB Companion Loan 0.01%
Squire Hill Apartments AB Companion Loan 0.01%
Four Points by Sheraton AB Companion Loan 0.02%
Xxxxx State University AB Companion Loan 0.02%
Xxxxxxxx Xxxxx A-2 Pari Passu Companion Loan 0.02%
ChampionsGate Pari Passu Companion Loan 0.01%
JQH Hotel Portfolio Pari Passu Companion Loan 0.01%(1)
Carespring Portfolio A-2 Pari Passu Companion Loan 0.02%
Carespring Portfolio A-3 Pari Passu Companion Loan 0.02%
Xxxxx Portfolio A-2 Pari Passu Companion Loan 0.02%
------------
(1) Payable until the JQH Hotel Portfolio Servicing Transfer Event.
"Servicing File": Shall mean, with respect to each Mortgage Loan
(other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event), a photocopy of all items required to be included in
the Mortgage File, together with each of the following, to the extent such items
were actually delivered to the related Mortgage Loan Seller with respect to a
Mortgage Loan and (to the extent that the identified documents existed on or
before the Closing Date and the applicable reference to Servicing File relates
to any period after the Closing Date) delivered by the related Mortgage Loan
Seller to the Master Servicer: (i) a copy of any engineering reports,
environmental reports or property condition reports received by the related
Mortgage Loan Seller with respect to the related Mortgaged Property; (ii) other
than with respect to a hotel property (except with respect to tenanted
commercial space within a hotel property), copies of a rent roll and, for any
office, retail, industrial or warehouse property, a copy of all leases and
estoppels and subordination and non-disturbance agreements delivered to the
Mortgage Loan Seller; (iii) copies of related financial statements or operating
statements; (iv) all legal opinions (excluding attorney-client communications
between any Mortgage Loan Seller and its counsel that are privileged
communications or constitute legal or other due diligence analyses), Mortgagor's
certificates and certificates of hazard insurance and/or hazard insurance
policies or other applicable insurance policies, if any, delivered in connection
with the closing of the Mortgage Loan; (v) a copy of the Appraisal for the
related Mortgaged Property(ies); (vi) the documents that were delivered by or on
behalf of the Mortgagor, which documents were required to be delivered in
connection with the closing of such Mortgage Loan; (vii) for any Mortgage Loan
that the related Mortgaged Property is leased to a single tenant, a copy of the
lease; and (viii) a copy of any property management agreement.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer and the Trustee that is performing activities that address
the Servicing Criteria, unless such Person's activities relate only to 5% or
less of the Mortgage Loans by unpaid principal balance as of any date of
determination in accordance with Article XI. The Servicing Function Participants
as of the Closing Date are listed on Exhibit EE hereto. Exhibit EE shall be
updated and provided to the Depositor and the Paying Agent in accordance with
Section 11.10(c).
"Servicing Officer": Any officer and/or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans (and, in the case of any
Serviced Mortgage Loan, the related Companion Loan) whose name and specimen
signature appear on a list of servicing officers furnished by the Master
Servicer and the Special Servicer to the Trustee and the Depositor on the
Closing Date as such list may be amended from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event) or Companion Loan, the occurrence of any of the
following events:
(i) with respect to a Mortgage Loan or Companion Loan that is
not a Balloon Mortgage Loan, (a) a payment default shall have
occurred at its original Maturity Date, or (b) if the original
Maturity Date of such Mortgage Loan or Companion Loan has been
extended, a payment default shall have occurred at such extended
Maturity Date; or
(ii) with respect to each Mortgage Loan or Companion Loan that
is a Balloon Mortgage Loan, the Balloon Payment is delinquent;
provided that if the Mortgagor continues to make the Assumed
Scheduled Payment and delivers to the Special Servicer within 60
days after the date such Balloon Payment was due a bona fide written
refinancing commitment that provides that such refinancing will
occur within 120 days of the Balloon Payment Due Date and is
acceptable in form and substance to the Special Servicer, a
Servicing Transfer Event will not occur until the earlier of (x) 120
days following the Due Date of the Balloon Payment and (y) the date
on which the refinancing commitment terminates; or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent; or
(iv) the Master Servicer makes a judgment, or receives from
the Special Servicer a written determination of the Special Servicer
concurred in by the Directing Certificateholder that a payment
default is imminent and is not likely to be cured by the related
Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto and any such fees actually paid shall be reimbursed by the
Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the Master Servicer or the Special
Servicer, as the case may be, has notice (other than a failure by
such Mortgagor to pay principal or interest) and which the Master
Servicer or Special Servicer (in the case of the Special Servicer,
with Directing Certificateholder consent) determines in its good
faith reasonable judgment may materially and adversely affect the
interests of the Certificateholders or the holders of the related
Companion Loan, if applicable, has occurred and remained unremedied
for the applicable grace period specified in such Mortgage Loan or
Companion Loan documents, other than the failure to maintain
terrorism insurance if such failure constitutes an Acceptable
Insurance Default (or if no grace period is specified for those
defaults which are capable of cure, 60 days); or
(ix) the Master Servicer has received notice of the
foreclosure or proposed foreclosure of any lien on the related
Mortgaged Property; or
(x) the Master Servicer or Special Servicer (in the case of
the Special Servicer, with the consent of the Directing
Certificateholder) determines that (i) a default (other than as
described in clause (iv) above) under the Mortgage Loan or Companion
Loan is imminent, (ii) such default will materially impair the value
of the corresponding Mortgaged Property as security for the Mortgage
Loan and Companion Loan (if any) or otherwise materially adversely
affect the interests of Certificateholders (and/or, with respect to
any Serviced Mortgage Loan, the related Companion Holder), and (iii)
the default will continue unremedied for the applicable cure period
under the terms of the Mortgage Loan or Companion Loan or, if no
cure period is specified and the default is capable of being cured,
for 30 days (provided that such 30-day grace period does not apply
to a default that gives rise to immediate acceleration without
application of a grace period under the terms of the Mortgage Loan
or Companion Loan); provided that any determination that a Servicing
Transfer Event has occurred under this clause (x) with respect to
any Mortgage Loan or Companion Loan solely by reason of the failure
(or imminent failure) of the related Mortgagor to maintain or cause
to be maintained insurance coverage against damages or losses
arising from acts of terrorism may only be made by the Special
Servicer (with the consent of the Directing Certificateholder).
If any Companion Loan becomes a Specially Serviced Mortgage Loan,
the related Mortgage Loan, shall also become a Specially Serviced Mortgage Loan.
If any Mortgage Loan becomes a Specially Serviced Mortgage Loan, any related
Companion Loan shall become a Specially Serviced Mortgage Loan. If any Mortgage
Loan in a Crossed Group becomes a Specially Serviced Mortgage Loan, each other
Mortgage Loan in such Crossed Group shall also become a Specially Serviced
Mortgage Loan.
With respect to the JQH Hotel Portfolio Mortgage Loan after the JQH
Hotel Portfolio Servicing Transfer Event, the occurrence of a "Servicing
Transfer Event" shall be governed by the BACM 2007-3 Pooling Agreement.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class X,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class T and Class
NR Certificates or, with respect to such Classes of Certificates an assignment
of the voting rights thereof; provided, however, the Certificate Balances of the
Class A-1, Class A-2, Class A-2FL, Class X-0, Xxxxx X-0, Class A-SB, Class A-1A,
Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G and
Class H Certificates have been retired.
"SOME II": SOME II, LLC and its successors in interest and assigns.
"Special Servicer": CWCapital Asset Management LLC, a Massachusetts
limited liability company, and its successors in interest and assigns, or any
successor Special Servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan (other than the JQH Hotel Portfolio Mortgage Loan
after the JQH Hotel Portfolio Servicing Transfer Event), the fee payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan (other than the JQH Hotel Portfolio
Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event), 0.25% per
annum computed on the basis of the Stated Principal Balance of the related
Mortgage Loan (including any REO Loan) or Companion Loan (if provided for in the
related Intercreditor Agreement) in the same manner as interest is calculated on
the Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Squire Hill Apartments AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Squire Hill Apartments Mortgage
Loan.
"Squire Hill Apartments Controlling Holder": The "Controlling
Holder" as defined in the Squire Hill Apartments Intercreditor Agreement.
"Squire Hill Apartments Intercreditor Agreement": That certain
Agreement Among Noteholders, dated as of July 5, 2007, by and between Nomura
Credit & Capital, Inc., as the Initial Note A Holder, and Nomura Credit Capital,
Inc., as the Initial Note B Note Holder. The Squire Hill Apartments
Intercreditor Agreement relates to the Squire Hill Apartments Whole Loan.
"Squire Hill Apartments Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 83.
"Squire Hill Apartments Whole Loan": The Squire Hill Apartments
Mortgage Loan and the Squire Hill Apartments AB Companion Loan.
"Stadium Towers AB Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Stadium Towers Mortgage Loan.
"Stadium Towers Controlling Holder": The "Controlling Holder" as
defined in the Stadium Intercreditor Agreement.
"Stadium Towers Intercreditor Agreement": That certain Agreement
Among Noteholders, dated as of July 5, 2007, by and between Nomura Credit &
Capital, Inc., as the Initial Note A Holder, and Nomura Credit Capital, Inc., as
the Initial Note B Note Holder. The Stadium Towers Intercreditor Agreement
relates to the Stadium Towers Whole Loan.
"Stadium Towers Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 13.
"Stadium Towers Whole Loan": The Stadium Towers Mortgage Loan and
the Stadium Towers AB Companion Loan.
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced by
the Master Servicer or the Trustee;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related Mortgage
Loan) and Liquidation Proceeds received with respect to such Mortgage Loan
after the Cut-off Date (or in the case of a Qualified Substitute Mortgage
Loan, the Due Date in the related month of substitution); and
(iv) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred prior to
the end of the Due Period for the most recent Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or a REO Loan that is a successor to a Mortgage Loan
shall be deemed to be part of the Trust Fund and to have an outstanding Stated
Principal Balance until the Distribution Date on which the payments or other
proceeds, if any, received in connection with a Liquidation Event in respect
thereof are to be (or, if no such payments or other proceeds are received in
connection with such Liquidation Event, would have been) distributed to
Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Master
Servicer (or a Sub-Servicer of the Master Servicer), the Special Servicer (or a
Sub-Servicer of the Special Servicer), an Additional Servicer (or a Sub-Servicer
of an Additional Servicer) or the Trustee.
"Sub-Servicer": Any Person that (i) Services Mortgage Loans on
behalf of the Master Servicer, Special Servicer or any Sub-Servicer and (ii) is
responsible for the performance (whether directly or through Sub-Servicers or
Subcontractors) of servicing functions required to be performed by the Master
Servicer, Special Servicer, Servicing Function Participant or an Additional
Servicer, under this Agreement, with respect to some or all of the Mortgage
Loans, that are identified in Item 1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Subordinate Certificate": Any Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q, Class T or Class NR Certificate.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage
Loans, the Substitution Shortfall Amount shall be determined as provided in the
preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the related Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Swap Contract": With respect to the Class A-2FL Certificates, the
1992 ISDA Master Agreement, together with the related schedule and confirmation
thereto, dated as of July 5, 2007, by and among the Swap Counterparty and the
Trustee, solely in its capacity as Trustee, on behalf of the Trust (a copy of
which is attached hereto as Exhibit AA).
"Swap Counterparty": With respect to the Class A-2FL Certificates,
JPMorgan Chase Bank, N.A., acting in such capacity, or its successor in
interest.
"Swap Counterparty Collateral Account": With respect to the Class
A-2FL Certificates, the trust account or accounts created and maintained as a
separate account or accounts by the Trustee pursuant to Section 3.31(g), which
shall be entitled "LaSalle Bank National Association, as Trustee, in trust for
the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass Through Certificates, Series 2007 LDP11 Class
A-2FL Certificates (subject to the rights of the Swap Counterparty as provided
in the Swap Contract), Swap Counterparty Collateral Account," and which must be
an Eligible Account (or a subaccount of an Eligible Account). The Swap
Counterparty Collateral Accounts shall not be assets of either the Lower Tier
REMIC or the Upper Tier REMIC formed hereunder.
"Swap Default": The Class A-2FL Swap Default.
"Swap Termination Fees": Any fees or expenses payable by the Swap
Counterparty to the Trust in connection with a related Swap Default, termination
of the Swap Contract or liquidation of the Swap Contract, as specified in the
Swap Contract.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(c).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto (subject to, in the case of any Serviced Mortgage Loan, the interests of
the related Companion Holder, in the related Mortgage File); (ii) all scheduled
or unscheduled payments on or collections in respect of the Mortgage Loans due
after the Cut-off Date (or with respect to a Qualified Substitute Mortgage Loan,
the Due Date in the month of substitution); (iii) any REO Property (to the
extent of the Trust Fund's interest therein), and after the JQH Hotel Portfolio
Servicing Transfer Event, the Trust Fund's beneficial interest in the Mortgaged
Property securing the JQH Hotel Portfolio Whole Loan acquired under the BACM
2007-3 Pooling Agreement; (iv) all revenues received in respect of any REO
Property (to the extent of the Trust Fund's interest therein); (v) the Master
Servicer's, the Special Servicer's and the Trustee's rights under the insurance
policies with respect to the Mortgage Loans required to be maintained pursuant
to this Agreement and any proceeds thereof (to the extent of the Trust Fund's
interest therein); (vi) any Assignments of Leases and any security agreements
(to the extent of the Trust Fund's interest therein); (vii) any letters of
credit, indemnities, guaranties or lease enhancement policies given as
additional security for any Mortgage Loans (to the extent of the Trust Fund's
interest therein); (viii) all assets deposited in the Servicing Accounts (to the
extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Accounts, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Floating
Rate Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account and
any REO Account (to the extent of the Trust Fund's interest in any such
account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies of the Depositor under each Mortgage Loan
Purchase Agreement (to the extent transferred to the Trustee); (xi) the
Uncertificated Lower-Tier Interests and the Class A-2FL Regular Interest; (xii)
the Swap Contract; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Mortgagor).
"Trustee": LaSalle Bank National Association, a national banking
association organized under the laws of the United States, or its successor in
interest, in its capacity as trustee or any successor Trustee appointed as
herein provided.
"Trustee Exception Report": As defined in Section 2.02(f).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. No portion of the Trustee Fee
shall be calculated by reference to any Companion Loan or the principal balance
of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.00034% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date.
"UBS": UBS Real Estate Securities Inc., a Delaware corporation, or
its successor in interest.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class XX-0, Xxxxx
XX-0X, Xxxxx XX-0, Class LA-2FL, Class XX-0, Xxxxx XX-0, Class LA-SB, Class
LA-M, Class LA-J, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG,
Class LH, Class LJ, Class LK, Class LL, Class LM, Class LN, Class LP, Class LQ,
Class LT and Class LNR Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., UBS Securities LLC,
Commerz Capital Markets Corp. and Natixis Securities North America Inc.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the P&I Advance Date
and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to such Mortgage Loans and any REO Loans on or prior to
the related P&I Advance Date, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Trustee pursuant to Section 3.04(b) in trust for the Certificateholders,
which shall be entitled "LaSalle Bank National Association, as Trustee, in trust
for the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, 0000-XXX00, Xxxxx-Xxxx
Distribution Account." Any such account or accounts shall be an Eligible Account
(or a subaccount of the Distribution Account).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates and (ii) in the case of any other Class of Regular Certificates
(other than the Class X certificates) a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates (other than the Class
X Certificates), each determined as of the Distribution Date immediately
preceding such time. None of the Class S Certificates, the Class R Certificates
and the Class LR Certificates will be entitled to any Voting Rights. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests evidenced by their
respective Certificates. Appraisal Reductions shall not result in a change in
the Class Voting Rights of any Class of Regular Certificates.
"Xxxxx State University AB Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Xxxxx State University Mortgage
Loan.
"Xxxxx State University Controlling Holder": The "Controlling
Holder" as defined in the Xxxxx State University Intercreditor Agreement.
"Xxxxx State University Intercreditor Agreement": That certain
Agreement Among Noteholders, dated as of June 12, 2007, by and between JPMorgan
Chase Bank, N.A., as the A Note Holder, and Mezz Cap Finance, LLC, as the B Note
Holder. The Xxxxx State University Intercreditor Agreement relates to the Xxxxx
State University Whole Loan.
"Xxxxx State University Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as Loan No. 114.
"Xxxxx State University Whole Loan": The Xxxxx State University
Mortgage Loan and the Xxxxx State University AB Companion Loan.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"WHFIT": shall mean a "Widely Held Fixed Investment Trust" as that
term is defined in Treasury Regulations Section 1.671-5(b)(22) or successor
provisions.
"WHFIT Regulations": shall mean Treasury Regulations Section
1.671-5, as amended.
"WHMT": A "Widely Held Mortgage Trust" as that term is defined in
Treasury Regulations Section 1.671-5(b)(23) or successor provisions.
"Whole Loan": Each AB Whole Loan, the Xxxxxxxx Xxxxx Whole Loan, the
ChampionsGate Whole Loan, the JQH Hotel Portfolio Whole Loan, the Carespring
Portfolio Whole Loan and the Xxxxx Portfolio Whole Loans.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) is not reimbursed to the Person who made such Advance
on or before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan (other than the JQH Hotel Portfolio Mortgage Loan
after the JQH Hotel Portfolio Servicing Transfer Event).
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Penalty Charges and Excess Interest) of interest and principal (other than any
amount for which a Liquidation Fee would be paid), including (i) Monthly
Payments, (ii) Balloon Payments and (iii) payments (other than those included in
clause (i) or (ii) of this definition) at maturity, received on each Corrected
Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Master Servicer, the Special
Servicer or the Trustee; provided, however, for purposes of calculating
distributions on the Certificates, Principal Prepayments with respect to
any Mortgage Loan are deemed to be received on the date they are applied
in accordance with the Servicing Standards consistent with the terms of
the related Mortgage Note and Mortgage to reduce the outstanding principal
balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates (other than the Class S, Class X and Residual Certificates)
or the Class A-2FL Regular Interest (and correspondingly, the Class A-2FL
Certificates) on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates (other than the Class S,
Class X and Residual Certificates) or the Class A-2FL Regular Interest
(and correspondingly, the Class A-2FL Certificates) on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class of Certificates (other than the Class S,
Class X and Residual Certificates) or the Class A-2FL Regular Interest
(and correspondingly, the Class A-2FL Certificates) on the immediately
preceding Distribution Date pursuant to Section 4.04, (c) the addition of
any Certificate Deferred Interest allocated to such Class of Certificates
(other than the Class S, Class X and Residual Certificates) or the Class
A-2FL Regular Interest (and correspondingly, the Class A-2FL Certificates)
and added to such Certificate Balance pursuant to Section 4.06(b) and (d)
any recoveries on the related Mortgage Loan of Nonrecoverable Advances
(plus interest thereon) that were previously reimbursed from principal
collections on the Mortgage Loans that resulted in a reduction of the
Principal Distribution Amount, Loan Group 1 Principal Distribution Amount
or Loan Group 2 Principal Distribution Amount, which recoveries are
allocated to such Class of Certificates or the or Class A-2FL Regular
Interest and added to the Certificate Balance pursuant to Section 4.04
(a). The Certificate Balance of the Class A-2FL Certificates shall be
equal to the Certificate Balance of the Class A-2FL Regular Interest at
all times, and any reductions or increases in the Certificate Balance of
the Class A-2FL Regular Interest shall result in a corresponding reduction
or increase, as applicable, of the Certificate Balance of the Class A-2FL
Certificates.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-2FL Regular
Interest, the and the Uncertificated Lower-Tier Interests) all the right, title
and interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on
the Mortgage Loan Schedule, (ii) Sections 1, 2, 3, 4, 5, 6(a) (excluding clause
(viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17,
18 and 19 of each of the Mortgage Loan Purchase Agreements, (iii) the
Intercreditor Agreements and any intercreditor agreements with respect to any
related mezzanine loans, and (iv) all other assets included or to be included in
the Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans other than (i) payments of
principal and interest due and payable on the Mortgage Loans on or before the
later of July 1, 2007 and the Due Date for such Mortgage Loan in July 2007 (and
July 1, 2007 for any Mortgage Loan that does not have a Due Date in July 2007)
and (ii) prepayments of principal collected on or before the later of July 1,
2007 and the Due Date for such Mortgage Loan in July 2007 (and July 1, 2007 for
any Mortgage Loan that does not have a Due Date in July 2007). The transfer of
the Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 12.07, is intended by the parties to
constitute a sale. In connection with the assignment to the Trustee of Sections
1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of Section 6(a)), 6(c), 6(d), 6(e),
6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan
Purchase Agreements, it is intended that the Trustee get the benefit of Sections
10, 11 and 14 thereof in connection with any exercise of rights under the
assigned Sections, and the Depositor shall use its best efforts to make
available to the Trustee the benefits of Sections 10, 11 and 14 in connection
therewith. Notwithstanding the foregoing, upon the occurrence of the JQH Hotel
Portfolio Servicing Transfer Event, then, with respect to the JQH Hotel
Portfolio Whole Loan, all documents in the Mortgage File (other than the
Mortgage Note evidencing the JQH Hotel Portfolio Mortgage Loan and any
intervening endorsements evidencing such Mortgage Loan) shall be transferred
from the Trustee to the trustee under the BACM 2007-3 Pooling Agreement.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, and deliver the Servicing File to the Master
Servicer. If the applicable Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the delivery
requirements of the applicable Mortgage Loan Purchase Agreement and this Section
2.01(b) shall be deemed to have been satisfied; provided, such Mortgage Loan
Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnifying the Trustee. If the applicable Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi) and
(xii) of the definition of "Mortgage File," with evidence of filing or recording
thereon (if intended to be recorded or filed), solely because of a delay caused
by the public filing or recording office where such document or instrument has
been delivered for filing or recordation, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied on a provisional basis as of the Closing Date as
to such non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File; provided
that a duplicate original or a photocopy of such non-delivered document or
instrument (certified by the applicable public filing or recording office, the
applicable title insurance company or the applicable Mortgage Loan Seller to be
a true and complete copy of the original thereof submitted for filing or
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date, and either the original of such non-delivered document
or instrument, or a photocopy thereof (certified by the appropriate county
recorder's office, in the case of the documents and/or instruments referred to
in clause (ii) of the definition of "Mortgage File," to be a true and complete
copy of the original thereof submitted for recording), with evidence of filing
or recording thereon, is delivered to the Trustee or such Custodian within 180
days of the Closing Date (or within such longer period, not to exceed 18 months,
after the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office such original or photocopy). If the applicable Mortgage Loan
Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of
the documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)
and (xii) of the definition of "Mortgage File," with evidence of filing or
recording thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost or destroyed, the
delivery requirements of the applicable Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File; provided
that a photocopy of such non-delivered document or instrument (with evidence of
filing or recording thereon and certified in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File" by
the appropriate county recorder's office to be a true and complete copy of the
original thereof submitted for recording) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date. Neither the Trustee
nor any Custodian shall in any way be liable for any failure by any Mortgage
Loan Seller or the Depositor to comply with the delivery requirements of the
related Mortgage Loan Purchase Agreement and this Section 2.01(b). If, on the
Closing Date as to any Mortgage Loan, the applicable Mortgage Loan Seller cannot
deliver in complete and recordable form (or form suitable for filing or
recording, if applicable) any one of the assignments in favor of the Trustee
referred to in clause (iii), (v) (to the extent not already assigned pursuant to
clause (iii)), or (xi) of the definition of "Mortgage File" solely because of
the unavailability of filing or recording information as to any existing
document or instrument and/or because such assignments are assignments in blank
and have not been completed in favor of the Trustee as specified in the related
clause(s) of the definition of "Mortgage File," such Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b) by delivering with respect to such
Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan
substantially in the form of Exhibit H; provided that all required original
assignments with respect to such Mortgage Loan (except for any Mortgage which
has been recorded in the name of MERS or its designee), in fully complete and
recordable form (or form suitable for filing or recording, if applicable), are
delivered to the Trustee or its Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months after the Closing Date,
as the Trustee in its discretion may consent to, which consent shall not be
unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the Master Servicer and the Master Servicer shall hold the
original (or copy, if such original has been submitted by the applicable
Mortgage Loan Seller to the issuing bank to effect an assignment or amendment of
such letter of credit (changing the beneficiary thereof to the Trust (in care of
the Master Servicer)) that may be required in order for the Master Servicer to
draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents); and the
applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to
the Trustee together with an officer's certificate of the applicable Mortgage
Loan Seller certifying that such document has been delivered to the Master
Servicer or an officer's certificate from the Master Servicer certifying that it
holds the letter(s) of credit pursuant to this Section 2.01(b), one of which
shall be delivered to the Trustee on the Closing Date. If a letter of credit
referred to in the previous sentence is not in a form that would allow the
Master Servicer to draw on such letter of credit on behalf of the Trust in
accordance with the applicable terms thereof and/or of the related Mortgage Loan
documents, the applicable Mortgage Loan Seller shall deliver the appropriate
assignment or amendment documents (or copies of such assignment or amendment
documents if the related Mortgage Loan Seller has submitted the originals to the
related issuer of such letter of credit for processing) to the Master Servicer
within 60 days of the Closing Date. If not otherwise paid by the related
Mortgagor, the applicable Mortgage Loan Seller shall pay any costs of assignment
or amendment of such letter(s) of credit required in order for the Master
Servicer to draw on such letter(s) of credit on behalf of the Trust and shall
cooperate with the reasonable requests of the Master Servicer or the Special
Servicer, as applicable, in connection with effectuating a draw under any such
letter of credit prior to the date such letter of credit is assigned or amended
in order that it may be drawn by the Master Servicer on behalf of the Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
(collectively, "Assignments" and, individually, "Assignment") relating to the
Mortgage Loans conveyed by it under the applicable Mortgage Loan Purchase
Agreement in proper form for filing or recording, as applicable, and to submit
such Assignments (except with respect to any Mortgages, Assignments of Leases
and UCC Financing Statements that have been recorded in the name of MERS or its
designee) for filing or recording, as the case may be, in the applicable public
filing or recording office, and on the Closing Date, such Mortgage Loan Seller
may deliver one (1) omnibus assignment for all such Mortgage Loans to the
Trustee or its Custodian as provided in Section 2.01(b). Except under the
circumstances provided for in the last sentence of this subsection (c), the
related Mortgage Loan Seller will itself, or a third party at such Mortgage Loan
Seller's expense will, promptly (and in any event within 120 days of the later
of the Closing Date and the Trustee's actual receipt of the related documents
and the necessary recording and filing information) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment to the Trustee referred to in clauses (iii) and (v) of the definition
of "Mortgage File" and each UCC assignment to the Trustee referred to in clause
(xi) of the definition of "Mortgage File." Each such Assignment submitted for
recording shall reflect that it should be returned by the public recording
office to the Trustee or its designee following recording (or to the agent of
the Mortgage Loan Seller who will then be responsible for delivery of the same
to the Trustee or its designee), and each such UCC assignment submitted for
recording or filing shall reflect that the file copy thereof should be returned
to the Trustee or its designee following recording or filing (or to the agent of
the Mortgage Loan Seller who will then be responsible for delivery of the same
to the Trustee or its designee). If any such document or instrument is
determined to be incomplete or not to meet the recording or filing requirements
of the jurisdiction in which it is to be recorded or filed, or is lost by the
public office or returned unrecorded or unfiled, as the case may be, because of
a defect therein, the related Mortgage Loan Seller or its designee shall
promptly prepare, at its own expense, a substitute therefor or cure such defect,
as the case may be, and thereafter the Mortgage Loan Seller or its designee
shall, at the expense of the related Mortgage Loan Seller, upon receipt thereof
cause the same to be duly recorded or filed, as appropriate. If, by the first
anniversary of the Closing Date, the Trustee has not received confirmation of
the recording or filing as the case may be, of any such Assignment, it shall so
advise the related Mortgage Loan Seller who may then pursue such confirmation
itself or request that the Trustee pursue such confirmation at the related
Mortgage Loan Seller's expense, and upon such a request and provision for
payment of such expenses satisfactory to the Trustee, the Trustee, at the
expense of the applicable Mortgage Loan Seller, shall cause a search of the land
records of each applicable jurisdiction or of the records of the offices of the
applicable Secretary of State for confirmation that the Assignment appears in
such records and retain a copy of such confirmation in the related Mortgage
File. In the event that confirmation of the recording or filing of an Assignment
cannot be obtained, the Trustee or the related Mortgage Loan Seller, as
applicable, shall promptly inform the other and the Trustee shall provide such
Mortgage Loan Seller with a copy of the Assignment and request the preparation
of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for
the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File," or to file any UCC assignment to the Trustee referred to in
clause (xi) of the definition of "Mortgage File," in those jurisdictions where,
in the written opinion of local counsel (which opinion shall be an expense of
the related Mortgage Loan Seller) acceptable to the Depositor and the Trustee,
such recordation and/or filing is not required to protect the Trustee's interest
in the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications (including such communications
between the Mortgage Loan Seller and its Affiliates) and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications which are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the Master Servicer within five Business Days after the Closing
Date and shall be held by the Master Servicer on behalf of the Trustee in trust
for the benefit of the Certificateholders (and as holder of the Class A-2FL
Regular Interest and the Uncertificated Lower-Tier Interests) and, if
applicable, on behalf of the related Companion Holder. Such documents and
records shall be any documents and records (with the exception of any items
excluded under the immediately preceding sentence) that would otherwise be a
part of the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, as in full force and effect, without
amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans by
such Mortgage Loan Seller, whether such accounts are held in the name of the
applicable Mortgage Loan Seller or any other name, to be transferred to the
Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
(g) The Trustee hereby acknowledges the receipt by it of the Closing
Date Deposit Amount. The Trustee shall hold such Closing Date Deposit Amount in
the Distribution Account and shall include the Closing Date Deposit Amount in
the Available Distribution Amount for the initial Distribution Date. The Closing
Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clauses (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate of the related Mortgage Loan Seller or the Master Servicer
as contemplated by the third to the last sentence of Section 2.01(b) hereof) and
(xxiii) of the definition of "Mortgage File" with respect to each Mortgage Loan,
of a fully executed original counterpart of each of the Mortgage Loan Purchase
Agreements, and of all other assets included in the Trust Fund and (2) declares
(a) that it or a Custodian on its behalf holds and will hold such documents and
the other documents delivered or caused to be delivered by the Mortgage Loan
Sellers that constitute the Mortgage Files, and (b) that it holds and will hold
such other assets included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders and, with respect to any
original document in the Mortgage File for each Whole Loan, for any present or
future Companion Holder, (and for the benefit of the Trustee as holder of the
Class A-2FL Regular Interest and the Uncertificated Lower-Tier Interests), as
applicable. If any Mortgage Loan Seller is unable to deliver or cause the
delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a
copy of such Mortgage Note, together with a signed lost note affidavit and
appropriate indemnity and shall thereby be deemed to have satisfied the document
delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit T, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicer, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full) and except as specifically identified in any
exception report annexed to such writing (the "Trustee Exception Report"), (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to last sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, (iii) based on such examination
and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (iv), (vi)
and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct and (iv)
the Trustee on behalf of the Trust is shown as the owner of each Mortgage
recorded in the name of MERS or its designee. With respect to each Mortgage Loan
listed on the Trustee Exception Report, the Trustee shall specifically identify
such Mortgage Loan together with the nature of such exception (in the form
reasonably acceptable to the Trustee and the related Mortgage Loan Seller and
separating items required to be in the Mortgage File but never delivered from
items which were delivered by the related Mortgage Loan Seller but are out for
filing or recording and have not been returned by the filing office or the
recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit T, certify in writing to each of the Depositor, the
Master Servicer, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the third to last sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the applicable Mortgage Loan
Seller have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and appear to be executed and relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File" resulting solely from a delay in the return of
the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
more than thirty (30) days following a Servicing Transfer Event, and (ii)
impairs or prohibits in any material way the Master Servicer's or Special
Servicer's ability to act upon, or enforce, any of the Trust Fund's rights and
remedies under the related Mortgage Loan, or Specially Serviced Mortgage Loan,
as applicable, at the time the Master Servicer or Special Servicer attempts to
act upon, or enforce, any such right or remedy, at such time the Directing
Certificateholder, in its sole judgment, may permit the related Mortgage Loan
Seller, in lieu of repurchasing or substituting for the related Mortgage Loan,
to deposit with the Trustee an amount, to be held in trust in a segregated
Eligible Account, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan (in the alternative, the related Mortgage Loan Seller may deliver
to the Trustee a letter of credit in such amount). Such funds or letter of
credit, as applicable, shall be held by the Trustee until the date on which the
Trustee determines that such document deficiency has been cured or the related
Mortgage Loan is no longer part of the Trust Fund, at which time the Trustee
shall return such funds (or letter of credit) to the related Mortgage Loan
Seller; provided, however, the Trustee shall be entitled to request a
certification by the Master Servicer and Special Servicer as to whether any such
document deficiency has been cured to the extent the Master Servicer and Special
Servicer are able to make that determination. If the Master Servicer or the
Special Servicer, as applicable, certifies to the Trustee that it has determined
in the exercise of its reasonable judgment that the document with respect to
which any such document deficiency exists is required in connection with an
imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any Mortgagor or third party with
respect to the related Mortgage Loan, establishing the validity or priority of
any lien on collateral securing the Mortgage Loan or for any immediate
significant servicing obligation, the related Mortgage Loan Seller shall be
required to repurchase or substitute for the related Mortgage Loan in accordance
with the terms and conditions of Section 2.03(b) or Section 6 of the related
Mortgage Loan Purchase Agreement; provided, however, such Mortgage Loan Seller
shall not be required to repurchase the Mortgage Loan for a period of ninety
(90) days after receipt of a notice to repurchase (together with any applicable
extension period) if it is attempting to recover the document from the
applicable filing or recording office and provides an officer's certificate
setting forth what actions such Mortgage Loan Seller is pursuing in connection
with such recovery. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, or cause the Master Servicer to deposit, such
funds, or shall draw upon the letter of credit and deposit the proceeds of such
draw, into the Certificate Account to be applied to the Purchase Price (or the
Substitution Shortfall Amount, if applicable, in which event the amount of such
funds or proceeds which exceed the Substitution Shortfall Amount shall be
returned to the Mortgage Loan Seller) in accordance with Section 2.03(b). All
such funds deposited with the Trustee shall be invested in Permitted
Investments, at the direction and for the benefit of the related Mortgage Loan
Seller. Such funds shall be treated as an "outside reserve fund" under the REMIC
Provisions, which, together with any reimbursement from the Lower-Tier REMIC, is
beneficially owned by the related Mortgage Loan Seller for federal income tax
purposes, which Mortgage Loan Seller shall remain liable for any taxes payable
on income or gain with respect thereto. If the Mortgage, Assignment of Leases,
UCC Financing Statement or other instrument related to the Mortgage Loan to be
repurchased or substituted has been recorded in the name of MERS or its
designee, the Master Servicer shall use reasonable efforts to reflect the
transfer of such Mortgage or other instrument to the related Mortgage Loan
Seller on the records of MERS.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (xiii), (xiv), (xv) through
(xxi) and (xxiii) of the definition of "Mortgage File" exist or are required to
be delivered by the Depositor, the Mortgage Loan Sellers or any other Person
(unless identified on the Mortgage Loan Checklist) or (ii) to inspect, review or
examine any of the documents, instruments, certificates or other papers relating
to the Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, sufficient to perfect and maintain the perfection of a security
interest or appropriate for the represented purpose or that they are other than
what they purport to be on their face and, with respect to the documents
specified in clause (ix), whether the insurance is effective as of the date of
the recordation of the related Mortgage, whether all endorsements or riders
issued are included in the file or if the policy has not been issued whether any
acceptable replacement document has been dated the date of the related Mortgage
Loan funding. Further, with respect to the UCC financing statements referenced
in the Mortgage File, absent actual knowledge to the contrary or copies of UCC
financing statements delivered to the Trustee as part of the Mortgage File
indicating otherwise, the Trustee may assume, for the purposes of the filings
and the certification to be delivered in accordance with this Section 2.02 that
the related Mortgage File should include one state level UCC financing statement
filing for each Mortgagor, except to the extent multiple Mortgagors which are
located in the same state are named as debtors in the same UCC financing
statement filing), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor, except to the extent multiple Mortgagors are
named as debtors in the same UCC financing statement filing). The assignments of
the UCC financing statements to be assigned to the Trust will be delivered on
the new national forms (or on such other form as may be acceptable for filing or
recording in the applicable jurisdiction) and in a format suitable for filing or
recording, as applicable, and will be filed or recorded in the jurisdiction(s)
where such UCC financing statements were originally filed or recorded, as
indicated in the documents provided, and in accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the Master Servicer, the Special
Servicer, the Directing Certificateholder and the applicable Mortgage Loan
Seller, (and in no event later than 90 days after the Closing Date and every
quarter thereafter, commencing with the quarter ending September 30, 2007 until
September 30, 2009), by the Trustee Exception Report setting forth for each
affected Mortgage Loan, with particularity, the nature of such Defect (in a form
reasonably acceptable to the Trustee and such Mortgage Loan Seller and
separating items required to be in the Mortgage File but never delivered from
items which were delivered by such Mortgage Loan Seller but are out for
recording or filing and have not been returned by the recorder's office or
filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Master Servicer, the Special
Servicer or the Trustee discovers (without implying any duty of such person to
make, or to attempt to make, such a discovery) or receives notice of a Defect in
any Mortgage File or a breach of any representation or warranty (excluding
receipt of the information contained in the Trustee Exception Report) with
respect to a Mortgage Loan set forth in, or required to be made with respect to,
a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the
case may be, materially and adversely affects the value of any Mortgage Loan,
the value of the related Mortgaged Property or the interests of the Trustee or
any Certificateholder therein, such Certificateholder, the Master Servicer, the
Special Servicer, the Trustee or the Directing Certificateholder, as applicable,
shall give prompt written notice of such Defect or Breach, as the case may be,
to the Depositor, the Master Servicer, the Special Servicer, the applicable
Mortgage Loan Seller, the Trustee and the Directing Certificateholder and shall
request in writing that the applicable Mortgage Loan Seller, not later than 90
days after the earlier of (i) the applicable Mortgage Loan Seller's receipt of
such notice or (ii) in the case of a Defect or Breach relating to a Mortgage
Loan not being a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code, but without regard to the rule of Treasury Regulation Section
1.860G-2(f)(2) that causes a defective mortgage loan to be treated as a
qualified mortgage, the applicable Mortgage Loan Seller's discovery of such
Defect or Breach (the "Initial Cure Period") that materially and adversely
affects the value of any Mortgage Loan, the value of the related Mortgaged
Property or the interests of the Trustee or any Certificateholder therein, (i)
cure such Defect or Breach, as the case may be, in all material respects, (ii)
repurchase the affected Mortgage Loan or REO Loan at the applicable Purchase
Price and in conformity with the applicable Mortgage Loan Purchase Agreement and
this Agreement or (iii) substitute a Qualified Substitute Mortgage Loan (other
than with respect to any Serviced Mortgage Loan, for which no substitution will
be permitted) for such affected Mortgage Loan or REO Loan (provided that in no
event shall any such substitution occur on or after the second anniversary of
the Closing Date) and pay the Master Servicer for deposit into the Certificate
Account, any Substitution Shortfall Amount in connection therewith and in
conformity with the applicable Mortgage Loan Purchase Agreement and this
Agreement; provided, however, if such Breach or Defect is capable of being cured
but is not cured within the Initial Cure Period, and the applicable Mortgage
Loan Seller has commenced and is diligently proceeding with the cure of such
Breach or Defect within the Initial Cure Period, the applicable Mortgage Loan
Seller shall have an additional 90 days commencing immediately upon the
expiration of the Initial Cure Period (such additional 90 day period, the
"Extended Cure Period") to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan or REO Loan or substitute a Qualified
Substitute Mortgage Loan) (other than with respect to any Serviced Mortgage
Loan, for which no substitution will be permitted) and provided, further, with
respect to such Extended Cure Period the applicable Mortgage Loan Seller shall
have delivered an officer's certificate to the Trustee (who shall promptly
deliver a copy of such officer's certificate to the Rating Agencies, the Master
Servicer, the Special Servicer and the Directing Certificateholder), setting
forth the reason such Breach or Defect is not capable of being cured within the
Initial Cure Period and what actions the applicable Mortgage Loan Seller is
pursuing in connection with the cure thereof and stating that the applicable
Mortgage Loan Seller anticipates that such Breach or Defect will be cured within
the Extended Cure Period. Notwithstanding the foregoing, any Defect or Breach
which causes any Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code, but without regard to the rule of
Treasury Regulations Section 1.860G-2(f)(2) that causes a defective mortgage
loan to be treated as a qualified mortgage) shall be deemed to materially and
adversely affect the interests of Certificateholders therein, and such Mortgage
Loan shall be repurchased or substituted for without regard to the Extended Cure
Period described in the preceding sentence. If the affected Mortgage Loan is to
be repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer to the
applicable Certificate Account. If any Breach pertains to a representation or
warranty that the related Mortgage Loan documents or any particular Mortgage
Loan document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s), then the related Mortgage Loan Seller shall cure such Breach within
the applicable cure period (as the same may be extended) by reimbursing the
Trust Fund (by wire transfer of immediately available funds) the reasonable
amount of any such costs and expenses incurred by the Master Servicer, the
Special Servicer, the Trustee or the Trust Fund that are the basis of such
Breach and have not been reimbursed by the related Mortgagor; provided, however,
in the event any such costs and expenses exceed $10,000, the related Mortgage
Loan Seller shall have the option to either repurchase or substitute for the
related Mortgage Loan as provided above or pay such costs and expenses. Except
as provided in the proviso to the immediately preceding sentence, the related
Mortgage Loan Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the related Mortgage Loan Seller shall be deemed to
have cured such Breach in all respects. To the extent any fees or expenses that
are the subject of a cure by the related Mortgage Loan Seller are subsequently
obtained from the related Mortgagor, the portion of the cure payment made by the
related Mortgage Loan Seller equal to such fees or expenses obtained from the
Mortgagor shall be returned to the related Mortgage Loan Seller pursuant to
Section 2.03(f) below. Monthly Payments due with respect to each Qualified
Substitute Mortgage Loan (if any) after the related Due Date in the month of
substitution, and Monthly Payments due with respect to each Mortgage Loan being
repurchased or replaced after the related Cut-off Date and received by the
Master Servicer or the Special Servicer on behalf of the Trust on or prior to
the related date of repurchase or substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) on or prior to the related Due Date in the month of substitution, and
Monthly Payments due with respect to each Mortgage Loan being repurchased or
replaced and received by the Master Servicer or the Special Servicer on behalf
of the Trust after the related date of repurchase or substitution, shall not be
part of the Trust Fund and are to be remitted by the Master Servicer to the
Mortgage Loan Seller effecting the related repurchase or substitution promptly
following receipt. Notwithstanding anything to the contrary contained in this
Agreement or the related Mortgage Loan Purchase Agreement, no delay in either
the discovery of a Defect or Breach or delay on the part of any party to this
Agreement in providing notice of such Defect or Breach shall relieve the
Mortgage Loan Seller of its obligation to repurchase if it is otherwise required
to do so under the related Mortgage Loan Purchase Agreement and/or this
Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of Mortgage File; (d) the absence from the
Mortgage File of any intervening assignments required to create a complete chain
of assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of each such missing intervening assignment
and a certificate stating that the original intervening assignment was sent for
filing or recordation, as applicable; (e) the absence from the Mortgage File of
any required letter of credit; or (f) with respect to any leasehold mortgage
loan, the absence from the related Mortgage File of a copy (or an original, if
available) of the related Ground Lease; provided, however, no Defect (except the
Defects previously described in clauses (a) through (f)) shall be considered to
materially and adversely affect the value of the related Mortgage Loan, the
value of the related Mortgaged Property or the interests of the Trustee or
Certificateholders unless the document with respect to which the Defect exists
is required in connection with an imminent enforcement of the mortgagee's rights
or remedies under the related Mortgage Loan, defending any claim asserted by any
Mortgagor or third party with respect to the Mortgage Loan, establishing the
validity or priority of any lien on any collateral securing the Mortgage Loan or
for any immediate significant servicing obligation. Notwithstanding the
foregoing, the delivery of executed escrow instructions or a binding commitment
to issue a lender's title insurance policy, as provided in clause (ix) of the
definition of Mortgage File herein, in lieu of the delivery of the actual policy
of lender's title insurance, shall not be considered a Defect or Breach with
respect to any Mortgage File if such actual policy is delivered to the Trustee
or a Custodian on its behalf not later than 18 months following the Closing
Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Master Servicer and the Special Servicer shall
each tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a trust receipt
executed by the applicable Mortgage Loan Seller evidencing such repurchase or
substitution, all portions of the Mortgage File and other documents pertaining
to such Mortgage Loan possessed by each of the Trustee, the Master Servicer and
the Special Servicer (other than attorney-client communications which are
privileged communications), and each document that constitutes a part of the
Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or
assigned, as the case may be, to the applicable Mortgage Loan Seller in the same
manner as provided in Section 6 of the related Mortgage Loan Purchase Agreement,
so as to vest in such Mortgage Loan Seller the legal and beneficial ownership of
such repurchased or substituted for Mortgage Loan (including property acquired
in respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents, and if the Mortgage, Assignment of Leases,
UCC Financing Statement or other instrument related to the Mortgage Loan has
been recorded in the name of MERS or its designee, the Master Servicer shall use
reasonable efforts to reflect the transfer of such Mortgage or other instrument
to such Mortgage Loan Seller on the records of MERS.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of such
Mortgage Loan Purchase Agreement.
(e) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests), enforce the obligations
of the applicable Mortgage Loan Seller under the applicable Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, shall be carried out in such form, to such extent and at
such time as the Special Servicer would require were it, in its individual
capacity, the owner of the affected Mortgage Loan(s). Any costs incurred by the
Special Servicer with respect to the enforcement of the obligations of the
applicable Mortgage Loan Seller under the applicable Mortgage Loan Purchase
Agreement shall be deemed to be Servicing Advances to the extent not otherwise
provided herein. The Special Servicer shall be reimbursed for the reasonable
costs of such enforcement: first, from a specific recovery, if any, of costs,
expenses or attorneys' fees against the applicable Mortgage Loan Seller; second,
pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to
the extent that such expenses are a specific component thereof; and third, if at
the conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Trust Fund, the Master Servicer and the Special
Servicer to recover amounts owed by the related Mortgagor under the terms of
such Mortgage Loan, including, without limitation, the rights to recover
unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the Trust
Fund, the Master Servicer or the Special Servicer allocable to such Mortgage
Loan. The Master Servicer or, with respect to a Specially Serviced Mortgage
Loan, the Special Servicer, shall use reasonable efforts to recover such
expenses for such Mortgage Loan Seller to the extent consistent with the
Servicing Standards, but taking into account the subordinate nature of the
reimbursement to the Mortgage Loan Seller; provided, however, the Master
Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special
Servicer, determines in the exercise of its sole discretion consistent with the
Servicing Standards that such actions by it will not impair the Master
Servicer's and/or the Special Servicer's collection or recovery of principal,
interest and other sums due with respect to the related Mortgage Loan which
would otherwise be payable to the Master Servicer, the Special Servicer, the
Trustee and the Certificateholders pursuant to the terms of this Agreement;
provided, further, the Master Servicer or, with respect to a Specially Serviced
Mortgage Loan, the Special Servicer, may waive the collection of amounts due on
behalf of the Mortgage Loan Seller in its sole discretion in accordance with the
Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller shall be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria. In the event that the remaining Crossed Loans
in such Crossed Group satisfy the aforementioned criteria, the applicable
Mortgage Loan Seller may elect either to repurchase or substitute for only the
affected Crossed Loan as to which the related Breach or Defect exists or to
repurchase or substitute for all of the Crossed Loans in the related Crossed
Group. For the avoidance of doubt, the Mortgage Loan affected by the applicable
Breach or Defect and Qualified Substitute Mortgage Loan, if any, must satisfy
all other criteria for repurchase and substitution of Mortgage Loans set forth
herein. Any reserve or other cash collateral or letters of credit securing the
Crossed Loans shall be allocated between such Mortgage Loans in accordance with
the related Mortgage Loan documents or otherwise on a pro rata basis based upon
their outstanding Stated Principal Balances. Except as provided in Section
2.03(h), all other terms of the Mortgage Loans shall remain in full force and
effect without any modification thereof.
(h) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
(i) Notwithstanding the foregoing, if there is a material Breach or
a material Defect with respect to a Mortgaged Property (but not all of the
Mortgaged Properties) that secure a Mortgage Loan or group of Crossed Loans, the
applicable Mortgage Loan Seller will not be obligated to repurchase the Mortgage
Loan or group of Crossed Loans; provided that (i) the affected Mortgaged
Property may be released pursuant to the terms of any partial release provisions
in the related Mortgage Loan documents (and such Mortgaged Property is, in fact,
released pursuant to such terms), (ii) the Mortgage Loan or the group of Crossed
Loans, as applicable, including the remaining Mortgaged Property(ies) fully
comply with and satisfy the terms, conditions and requirements set forth in the
Mortgage Loan documents, this Agreement, the related Mortgage Loan Purchase
Agreement and, in the case of a group of Crossed Loans, the Crossed Loan
Repurchase Criteria, (iii) in connection with such partial release, the related
Mortgage Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan
Seller's expense) to the effect that the contemplated action will not, with
respect to the Upper-Tier REMIC or the Lower-Tier REMIC created hereunder,
endanger such status or result in the imposition of any tax and (iv) in
connection with such partial release, the related Mortgage Loan Seller delivers
or causes to be delivered to the Custodian original modifications to the
Mortgage prepared and executed in connection with such partial release.
(j) Subject to the applicable time periods for cure, substitution,
repurchase or other remedy provided in this Agreement, if the applicable
Mortgage Loan Seller contests a repurchase claim and the Special Servicer
determines that it is in the best interest of the Certificateholders to proceed
with a liquidation or workout (any modification pursuant to which shall not
constitute a defense against repurchase) of a Defaulted Mortgage Loan while
pursuing a repurchase claim, the Special Servicer may proceed with such
liquidation or workout, provided that (i) any such action is consistent with the
Servicing Standard and (ii) the applicable Mortgage Loan Seller receives advance
written notice of such liquidation or workout. In the event of such liquidation
or workout, the Mortgage Loan Seller will be liable for the difference between
the aggregate of all amounts previously received from the liquidation or workout
of, or otherwise in respect of, such Mortgage Loan and the Purchase Price, to
the extent the repurchase claim is successful.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans (other than Excess Interest), receipt of which is hereby
acknowledged, the Trustee (i) acknowledges the issuance of the Uncertificated
Lower-Tier Interests by the Trustee to the Depositor and (ii) acknowledges the
authentication and delivery of the Class LR Certificates by the Trustee to or
upon the order of the Depositor, (iii) acknowledges the contribution by the
Depositor of the Uncertificated Lower-Tier Interests to the Upper-Tier REMIC and
(iv) immediately thereafter, the Trustee acknowledges that it has caused the
Certificate Registrar to execute and caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor, in exchange
for the Uncertificated Lower-Tier Interests, the Regular Certificates (other
than the Class A-2FL Certificates) and the Class R Certificates, and the Trustee
acknowledges the issuance of the Class A-2FL Regular Interest, and the Depositor
hereby acknowledges the receipt by it or its designees, of such Certificates and
the Class A-2FL Regular Interest in authorized Denominations evidencing the
entire beneficial ownership of the Upper-Tier REMIC.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Class A-2FL
Regular Interest to the Trustee for the benefit of the respective Holders of the
Class A-2FL Certificates. The Trustee (i) acknowledges the assignment to it of
the Class A-2FL Regular Interest and acknowledges that it has executed the Swap
Contract, (ii) declares that it holds and will hold the Class A-2FL Regular
Interest and the Swap Contract in trust for the exclusive use and benefit of all
present and future Holders of the Class A-2FL Certificates and (iii) declares
that it has caused the Certificate Registrar to execute, and has caused the
Authenticating Agent to authenticate and to deliver to or upon the order of the
Depositor, in exchange for the Class A-2FL Regular Interest and for entering
into the Swap Contract, and the Depositor hereby acknowledges the receipt by it
or its designees of the Class A-2FL Certificates in authorized Denominations. In
exchange for the Excess Interest, the Trustee acknowledges that it has caused
the Certificate Registrar to execute and caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor the Class S
Certificates in authorized Denominations.
Section 2.05 Grantor Trust Designations. The Class S Certificates
are hereby designated as undivided beneficial interests in the portion of the
Trust Fund consisting of Excess Interest, the Excess Interest Distribution
Account and proceeds thereof, which portion shall be treated as part of a
grantor trust within the meaning of subpart E, Part I of subchapter J of the
Code. The Class A-2FL Certificates are hereby designated as undivided beneficial
interests in the portion of the Trust Fund consisting of the Class A-2FL Regular
Interest, the Swap Contract and Floating Rate Account and the proceeds thereof,
which portion shall be treated as part of a grantor trust within the meaning of
subpart E, Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
The Master Servicer and the Special Servicer shall diligently service and
administer the Mortgage Loans and the Companion Loans it is obligated to service
pursuant to this Agreement on behalf of the Trust and in the best interests of
and for the benefit of the Certificateholders and, in the case of the Companion
Loans, the related Companion Holders and the Trustee (as holder of the Class
A-2FL Regular Interest and the Uncertificated Lower Tier Interests), as a
collective whole, taking into account the subordinate or pari passu nature of
the related Companion Loans, as the case may be (as determined by the Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and, with respect to each Serviced Whole Loan, the related
Intercreditor Agreement and the terms of the respective Mortgage Loans.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Master Servicer's and the Special Servicer's obligations,
responsibilities and authority with respect to the Mezz Cap AB Mortgage Loan are
limited by and subject to the terms of the related Mezz Cap AB Mortgage Loan
Intercreditor Agreement. The Master Servicer (or, with respect to any Specially
Serviced Mortgage Loan, the Special Servicer) shall use reasonable efforts
consistent with the Servicing Standards to enforce the rights of the Trust Fund
(as holder of the Mezz Cap AB Mortgage Loan) under the related Mezz Cap AB
Mortgage Loan Intercreditor Agreement. Any cost and expenses associated with
such enforcement of the Trust Fund's rights against the Companion Holder shall
be an expense of the Trust Fund to the extent not otherwise provided in the
related Intercreditor Agreement. With respect to each Serviced Whole Loan, in
the event of a conflict between this Agreement and the related Intercreditor
Agreement, the related Intercreditor Agreement shall control; provided, in no
event shall the Master Servicer or the Special Servicer take any action in
accordance with the terms of any Intercreditor Agreement that would cause the
Master Servicer or the Special Servicer, as the case may be, to violate the
Servicing Standards or the REMIC Provisions.
To the extent consistent with the foregoing, the Master Servicer and
the Special Servicer shall service the Mortgage Loans in accordance with the
applicable Servicing Standards. The "Servicing Standards" mean with respect to
the Master Servicer or Special Servicer, the servicing of the Mortgage Loans in
accordance with the higher of the following standards of care: (1) in the same
manner in which, and with the same care, skill, prudence and diligence with
which the Master Servicer or the Special Servicer, as the case may be, services
and administers similar mortgage loans for other third party portfolios and (2)
the same care, skill, prudence and diligence with which the Master Servicer or
the Special Servicer, as the case may be, services and administers similar
mortgage loans owned by the Master Servicer or the Special Servicer, as the case
may be, with a view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans or the Specially
Serviced Mortgage Loans, as applicable, and the best interests of the Trust and
the Certificateholders (and in the case of a Serviced Whole Loan, the related
Companion Holder, taking into account the subordinate or pari passu nature of
the related Companion Loan), as determined by the Master Servicer or the Special
Servicer, as the case may be, in its reasonable judgment, in either case, giving
due consideration to the customary and usual standards of practice of prudent
institutional, multifamily and commercial mortgage loan servicers, but without
regard to: (i) any relationship that the Master Servicer, the Special Servicer
or any Affiliate of the Master Servicer or the Special Servicer may have with
any Mortgagor or any Affiliate of such Mortgagor, any Mortgage Loan Seller or
any other parties to this Agreement; (ii) the ownership of any Certificate,
mezzanine loan or Companion Loan by the Master Servicer, the Special Servicer or
any Affiliate of the Master Servicer or Special Servicer, as applicable; (iii)
the adequacy of the Master Servicer's or the Special Servicer's, as the case may
be, right to receive compensation for its services and reimbursement for its
costs hereunder or with respect to any particular transaction; (iv) the
ownership, servicing or management for others of any other mortgage loans or
mortgaged properties by the Master Servicer or Special Servicer; (v) any
obligation of the Master Servicer or Special Servicer or any of its affiliates
(in their capacity as a Mortgage Loan Seller) to cure a breach of a
representation or warranty or document defect with respect to, or repurchase or
substitute for the Mortgage Loan; (vi) any other debt the Master Servicer or the
Special Servicer or any of its Affiliates has extended to any Mortgagor or any
of its Affiliates; (vii) any obligation of the Master Servicer or any of its
Affiliates to make Advances; and (viii) any option to purchase any Mortgage Loan
or Companion Loan by either Master Servicer or the Special Servicer or any of
their Affiliates.
Without limiting the foregoing, subject to Section 3.21, (1) the
Master Servicer shall be obligated to service and administer all Mortgage Loans
(other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event) which, in each case, do not constitute Specially
Serviced Mortgage Loans, and (2) the Special Servicer shall be obligated to
service and administer (i) any Mortgage Loans (other than the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event)
and Companion Loans as to which a Servicing Transfer Event has occurred and is
continuing (the "Specially Serviced Mortgage Loans") and (ii) any REO Properties
(except with respect to the JQH Hotel Portfolio Mortgaged Property after the JQH
Hotel Portfolio Servicing Transfer Event); provided that the Master Servicer
shall continue to receive payments and make all calculations, and prepare, or
cause to be prepared, all reports, required hereunder with respect to the
Specially Serviced Mortgage Loans, except for the reports specified herein as
prepared by the Special Servicer, as if no Servicing Transfer Event had occurred
and with respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such services with respect to such
Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided further, however, that the Master Servicer shall
not be liable for failure to comply with such duties insofar as such failure
results from a failure of the Special Servicer to provide sufficient information
to the Master Servicer to comply with such duties or failure by the Special
Servicer to otherwise comply with its obligations hereunder. The Master Servicer
will not have any responsibility for the performance by the Special Servicer of
its duties under this Agreement. Each Mortgage Loan or Companion Loan that
becomes a Specially Serviced Mortgage Loan shall continue as such until
satisfaction of the conditions specified in Section 3.21(a). Without limiting
the foregoing, subject to Section 3.21, the Master Servicer shall be obligated
to service and administer all related Mortgage Loans (other than the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event)
and Companion Loans, which are not Specially Serviced Mortgage Loans. The
Special Servicer shall make the inspections, use its reasonable efforts to
collect the statements and forward to the Master Servicer the reports in respect
of the related Mortgaged Properties with respect to Specially Serviced Mortgage
Loans in accordance with Section 3.12. After notification to the Master
Servicer, the Special Servicer may contact the Mortgagor of any Non-Specially
Serviced Mortgage Loan if efforts by the Master Servicer to collect required
financial information have been unsuccessful or any other issues remain
unresolved. Such contact shall be coordinated through and with the cooperation
of the Master Servicer. No provision herein contained shall be construed as an
express or implied guarantee by the Master Servicer or the Special Servicer of
the collectibility or recoverability of payments on the Mortgage Loans or shall
be construed to impair or adversely affect any rights or benefits provided by
this Agreement to the Master Servicer or the Special Servicer (including with
respect to Servicing Fees, Special Servicing Fees or the right to be reimbursed
for Advances and interest accrued thereon). Any provision in this Agreement for
any Advance by the Master Servicer or the Trustee is intended solely to provide
liquidity for the benefit of the Certificateholders and not as credit support or
otherwise to impose on any such Person the risk of loss with respect to one or
more of the Mortgage Loans. No provision hereof shall be construed to impose
liability on the Master Servicer or the Special Servicer for the reason that any
recovery to the Certificateholders in respect of a Mortgage Loan at any time
after a determination of present value recovery is less than the amount
reflected in such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements (and intercreditor agreements
entered into after the Closing Date with respect to any Mortgage Loan in
connection with mezzanine debt permitted under the related Mortgage Loan
documents), and applicable law, the Master Servicer and the Special Servicer
each shall have full power and authority, acting alone or, in the case of the
Master Servicer, subject to Section 3.22, through one or more Sub-Servicers, to
do or cause to be done any and all things in connection with such servicing and
administration for which it is responsible which it may deem necessary or
desirable. Without limiting the generality of the foregoing, the Master Servicer
and the Special Servicer, in its own name (or in the name of the Trustee and, if
applicable, the Companion Holder), is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, with respect to each Mortgage Loan (and, with respect to
a Companion Loan, the Companion Holder) it is obligated to service under this
Agreement: (i) any and all financing statements, continuation statements and
other documents or instruments necessary to maintain the lien created by the
related Mortgage or other security document in the related Mortgage File on the
related Mortgaged Property and related collateral; (ii) subject to Sections 3.08
and 3.20, any and all modifications, waivers, amendments or consents to, under
or with respect to any documents contained in the related Mortgage File; (iii)
any and all instruments of satisfaction or cancellation, pledge agreements and
other documents in connection with a defeasance, or of partial or full release
or discharge, and all other comparable instruments and (iv) initiate any action,
suit or proceeding on behalf of the Trust (in their representative capacities).
Subject to Section 3.10, the Trustee shall furnish, or cause to be furnished, to
the Master Servicer or the Special Servicer any powers of attorney and other
documents necessary or appropriate to enable the Master Servicer or the Special
Servicer, as the case may be, to carry out its servicing and administrative
duties hereunder; provided, however, the Trustee shall not be held liable for
any negligence with respect to, or misuse of, any such power of attorney by the
Master Servicer or the Special Servicer. Notwithstanding anything contained
herein to the contrary, the Master Servicer or the Special Servicer, as the case
may be, shall not, without the Trustee's written consent: (i) initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Master Servicer's or the Special Servicer's, as the case may be,
representative capacity or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be required to be registered to do business
in any state.
(c) To the extent the Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action which requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), the Master Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents or Companion Loan documents require the
Mortgagor to bear the costs of any confirmation of the Rating Agencies that an
action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Companion Loan
Securities), the Master Servicer shall not waive the requirement that such costs
and expenses be borne by the related Mortgagor. To the extent that the terms of
the related Mortgage Loan documents or Companion Loan documents are silent as to
who bears the costs of any confirmation of the Rating Agencies that an action
will not result in the downgrade, withdrawal or qualification of the ratings of
any Class of Certificates (or of any class of Companion Loan Securities), the
Master Servicer shall use reasonable efforts to have the Mortgagor bear such
costs and expenses. The Master Servicer shall not be responsible for the payment
of such costs and expenses out of pocket.
(d) The relationship of the Master Servicer and the Special Servicer
to the Trustee under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(e) The Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof and (ii) the Closing Date, (A) the Master Servicer shall notify,
or cause the applicable Mortgage Loan Seller to notify each provider of a letter
of credit for each Mortgage Loan identified as having a letter of credit on the
Mortgage Loan Schedule, that the Trust (in care of the Master Servicer) for the
benefit of the Certificateholders and any related Companion Holders shall be the
beneficiary under each such letter of credit and (B) the Master Servicer shall
notify each lessor under a Ground Lease for each Mortgage Loan identified as
subject to a leasehold interest on the Mortgage Loan Schedule, that the Master
Servicer or the Special Servicer shall service such Mortgage Loan for the
benefit of the Certificateholders and, if applicable, any related Companion
Holder. If the Mortgage Loan documents do not require the related Mortgagor to
pay any costs and expenses relating to any modifications to the related letter
of credit, then the applicable Mortgage Loan Seller shall pay such costs and
expenses. If the Mortgage Loan documents require the related Mortgagor to pay
any costs and expenses relating to any modifications to the related letter of
credit, and such Mortgagor fails to pay such costs and expenses after the Master
Servicer has exercised reasonable efforts to collect such costs and expenses
from such Mortgagor, then the Master Servicer shall give the applicable Mortgage
Loan Seller notice of such failure and the amount of costs and expenses, and
such Mortgage Loan Seller shall pay such costs and expenses. The costs and
expenses of any modifications to Ground Leases shall be paid by the related
Mortgagor. Neither the Master Servicer nor the Special Servicer shall have any
liability for the failure of any Mortgage Loan Seller to perform its obligations
under the related Mortgage Loan Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer (or the Trustee, as applicable) make a Servicing
Advance with respect to any Companion Loan to the extent the related Mortgage
Loan has been paid in full or is no longer included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding Mortgage Loan or any related
REO Property is part of the Trust Fund or for such longer period as any amounts
payable by the related Companion Holder to or for the benefit of the Trust or
any party hereto in accordance with the related Intercreditor Agreement remain
due and owing.
(i) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any Serviced Whole Loan or other
Mortgage Loan that may become subject to an intercreditor agreement in the
future, it shall, subject to Section 3.21, enforce, on behalf of the Trust,
subject to the Servicing Standards and to the extent the Special Servicer
determines such action is in the best interests of the Trust Fund, the rights
that the Trustee, on behalf of the Trust, as holder of each related Mortgage
Loan is entitled to exercise under the related Intercreditor Agreement. The
costs and expenses incurred by the Special Servicer in connection with such
enforcement shall be paid as a Servicing Advance.
(j) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's and the Special
Servicer's obligations and responsibilities hereunder and the Master Servicer's
and the Special Servicer's authority with respect to the JQH Hotel Portfolio
Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event are limited
by and subject to the terms of the JQH Hotel Portfolio Intercreditor Agreement
and the rights of the BACM 2007-3 Master Servicer and BACM 2007-3 Special
Servicer with respect thereto under the BACM 2007-3 Pooling Agreement. After the
JQH Hotel Portfolio Servicing Transfer Event, the Master Servicer (or, if a
Specially Serviced Mortgage Loan, the Special Servicer) shall use reasonable
best efforts consistent with the Servicing Standards to enforce the rights of
the Trustee (as holder of the JQH Hotel Portfolio Mortgage Loan) under the JQH
Hotel Portfolio Intercreditor Agreement and the BACM 2007-3 Pooling Agreement.
(k) The parties hereto acknowledge that the JQH Hotel Portfolio
Mortgage Loan is subject to the terms and conditions of the JQH Hotel Portfolio
Intercreditor Agreement and further acknowledge that, pursuant to the JQH Hotel
Portfolio Intercreditor Agreement, (i) after the JQH Hotel Portfolio Servicing
Transfer Event, the JQH Hotel Portfolio Mortgage Loan is to be serviced and
administered by the BACM 2007-3 Master Servicer and the BACM 2007-3 Special
Servicer in accordance with the BACM 2007-3 Pooling Agreement, and (ii) in the
event that (A) the related Companion Loan is no longer part of the trust fund
created by the BACM 2007-3 Pooling Agreement and (B) the JQH Hotel Portfolio
Mortgage Loan is included in the Trust Fund, then, as set forth in the JQH Hotel
Portfolio Intercreditor Agreement, the JQH Hotel Portfolio Whole Loan shall be
serviced in accordance with the applicable provisions of a pooling agreement
negotiated by the holder of the related Companion Loan that is substantially
similar to the BACM 2007-3 Pooling Agreement, until such time as a new servicing
agreement has been agreed to by the parties to the JQH Hotel Portfolio
Intercreditor Agreement in accordance with the provisions of such agreement and
confirmation has been obtained from the Rating Agencies that such new servicing
agreement would not result in a downgrade, qualification or withdrawal of the
then current ratings of any Class of Certificates then outstanding.
(l) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the servicing and administration of a Serviced
Whole Loan shall continue hereunder (without any further obligation to make P&I
Advances) even if the Serviced Mortgage Loan is no longer part of the Trust
Fund, until such time as a separate servicing agreement is entered into in
accordance with the related Intercreditor Agreement (it being acknowledged that
neither the Master Servicer nor the Special Servicer shall be obligated under a
separate agreement to which it is not a party). At such time as a separate
servicing agreement is entered into, all amounts due to the Master Servicer or
Special Servicer, as applicable, including advances and interest thereon, for
the period that the Serviced Whole Loan was not part of the Trust Fund, but was
serviced by the Master Servicer or the Special Servicer, as applicable shall be
paid to the Master Servicer or the Special Servicer upon the execution of a
separate servicing agreement by the holder of such Serviced Whole Loan or as
otherwise agreed to by such holder and the Master Servicer or the Special
Servicer, as applicable.
(m) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the Serviced Whole Loans are limited by and subject to the terms of the related
Intercreditor Agreement. The Master Servicer (or, if a Serviced Whole Loan
becomes a Specially Serviced Loan, the Special Servicer) shall use reasonable
efforts consistent with the Servicing Standards to obtain the benefits of the
rights of the Trust Fund (as holder of the related Serviced Mortgage Loan) under
the related Intercreditor Agreement.
Section 3.02 Collection of Mortgage Loan Payments. (a) The Master
Servicer and the Special Servicer shall make reasonable efforts to collect all
payments called for under the terms and provisions of the Mortgage Loans (other
than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event) and Companion Loans (subject to the right of certain
Companion Holders to receive payments directly from the related Mortgagor
pursuant to the related Intercreditor Agreement) it is obligated to service
hereunder, and shall follow such collection procedures as are consistent with
this Agreement (including, without limitation, the Servicing Standards);
provided that with respect to the Mortgage Loans that have Anticipated Repayment
Dates, so long as the related Mortgagor is in compliance with each provision of
the related Mortgage Loan documents, the Master Servicer and the Special
Servicer, shall not take any enforcement action with respect to the failure of
the related Mortgagor to make any payment of Excess Interest, other than
requests for collection, until the maturity date of the related Mortgage Loan or
the outstanding principal balance of such Mortgage Loan has been paid in full;
provided that the Master Servicer or Special Servicer, as the case may be, may
take action to enforce the Trust Fund's right to apply excess cash flow to
principal in accordance with the terms of the Mortgage Loan documents. The
Master Servicer or the Special Servicer, as applicable, may in its discretion
waive any Penalty Charge (other than a Penalty Charge payable with respect to
the Companion Loans if the related Intercreditor Agreement provides that such
Penalty Charge may not be waived without the consent of the related Companion
Loan Holder after the securitization of such Companion Loan) in connection with
any delinquent payment on a Mortgage Loan or Companion Loan it is obligated to
service hereunder two times during any period of twenty-four consecutive months
with respect to any Mortgage Loan or Companion Loan; provided that the Master
Servicer or the Special Servicer, as applicable, may in its discretion waive any
Penalty Charge (other than a Penalty Charge payable with respect to the
Companion Loans if the related Intercreditor Agreement provides that such
Penalty Charge may not be waived without the consent of the related Companion
Loan Holder after the securitization of such Companion Loan) in connection with
any delinquent payment on a Mortgage Loan or Companion Loan one additional time
in such 24-month period so long as no Advance or additional Trust Fund expense
has been incurred and remains unreimbursed to the Trust with respect to such
Mortgage Loan or Companion Loan. Any additional waivers during such 24-month
period with respect to such Mortgage Loan may be made only after the Master
Servicer or Special Servicer, as the case may be, has given notice of a proposed
waiver to the Directing Certificateholder and the Directing Certificateholder
has consented to such additional waiver (provided, that if the Master Servicer
or Special Servicer, as the case may be, fails to receive a response to such
notice from the Directing Certificateholder in writing within five (5) days of
giving such notice, then the Directing Certificateholder shall be deemed to have
consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to each Serviced Whole
Loan, the related Intercreditor Agreement) and, in the absence of such express
provisions, such payments from Mortgagors, Insurance and Condemnation Proceeds
or Liquidation Proceeds shall be applied (after reimbursement first to the
Trustee and second to the Master Servicer for any related outstanding Advances
(including Workout Delayed Reimbursement Amounts that have not been reimbursed
to the Master Servicer) and interest thereon as provided herein and unpaid
servicing compensation, Liquidation Expenses and related additional Trust Fund
expenses): first, as a recovery of accrued and unpaid interest on such Mortgage
Loan or Companion Loan, as applicable, at the related Mortgage Rate in effect
from time to time to but not including the Due Date in the Due Period of
receipt; second, as a recovery of Unliquidated Advances, third as a recovery of
principal of such Mortgage Loan or Companion Loan then due and owing, in each
case, that were paid from collections on the Mortgage Loans or Companion Loan
and resulted in principal distributed to the Certificateholders being reduced as
a result of the first proviso in the definition of "Principal Distribution
Amount", "Loan Group 1 Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount"; fourth, as a recovery of Nonrecoverable Advances; fifth,
in accordance with the Servicing Standards, as a recovery of any other amounts
due and owing on such Mortgage Loan or Companion Loan, as applicable, including,
without limitation, Penalty Charges and Yield Maintenance Charges; and sixth, as
a recovery of principal of such Mortgage Loan or Companion Loan, as applicable,
to the extent of its entire unpaid principal balance. Notwithstanding the
preceding, such provisions shall not be deemed to affect the priority of
distributions of payments. To the extent that such amounts are paid by a party
other than a Mortgagor, such amounts shall be deemed to have been paid in
respect of a purchase of all or part of the Mortgaged Property (in the case of
Insurance and Condemnation Proceeds or Liquidation Proceeds) and then paid by
the Mortgagor under the Mortgage Loan or Companion Loan, as applicable, in
accordance with the preceding sentence. Amounts collected on any REO Loan shall
be deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Serviced Whole Loan (s), the related Companion Loan
and Intercreditor Agreement) and applicable law, the Master Servicer shall apply
all Insurance and Condemnation Proceeds it receives on a day other than the Due
Date to amounts due and owing under the related Mortgage Loan or Companion Loan
as if such Insurance and Condemnation Proceeds were received on the Due Date
immediately succeeding the month in which such Insurance and Condemnation
Proceeds were received.
(d) In the event that the Master Servicer or Special Servicer
receives Excess Interest prior to the Determination Date for any Due Period, or
receives notice from the related Mortgagor that the Master Servicer or Special
Servicer will be receiving Excess Interest prior to the Determination Date for
any Due Period, the Master Servicer or Special Servicer, as the case may be,
will notify the Trustee two Business Days prior to the related Distribution Date
in the CMSA Loan Periodic Update File. None of the Master Servicer, the Special
Servicer or the Trustee shall be responsible for any failure of the related
Mortgagor to pay any such Excess Interest. The preceding statements shall not,
however, be construed to limit the provisions of Section 3.02(a).
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer shall, to the extent consistent with the
Servicing Standards, hold such escrows, letters of credit and proceeds thereof
as additional collateral and not apply such items to reduce the principal
balance of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents, applicable law or court order.
(f) Promptly after the JQH Hotel Portfolio Servicing Transfer Event,
the Trustee shall send written notice (in the form attached hereto as Exhibit L
and an execution copy of this Agreement) to the BACM 2007-3 Trustee and the BACM
2007-3 Master Servicer stating that, as of the Closing Date, the Trustee is the
holder of the JQH Hotel Portfolio Mortgage Loan and directing the BACM 2007-3
Master Servicer (or primary servicer, as applicable) to remit to the Master
Servicer all amounts payable to, and to forward, deliver or otherwise make
available, as the case may be, to the Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, the holder of the JQH Hotel Portfolio
Mortgage Loan under the related Intercreditor Agreement and the BACM 2007-3
Pooling Agreement. Such notice shall also provide contact information for the
Trustee, the Master Servicer and the Special Servicer. Promptly after the JQH
Hotel Portfolio Servicing Transfer Event, the Master Servicer shall deliver the
Servicing File to the BACM 2007-3 Master Servicer. The Master Servicer shall,
within one Business Day of receipt, deposit into the Certificate Account all
amounts received from time to time with respect to the JQH Hotel Portfolio
Mortgage Loan, the related Mortgaged Property or any related REO Property.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) The Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents. Any
Servicing Accounts related to any Serviced Whole Loan shall be held for the
benefit of the Certificateholders and the related Companion Holder, but this
shall not be construed to modify their respective interests therein as set forth
in the related Intercreditor Agreement. Amounts on deposit in Servicing Accounts
may only be invested in accordance with the terms of the related Mortgage Loan
documents or in Permitted Investments in accordance with the provisions of
Section 3.06. Servicing Accounts shall be Eligible Accounts to the extent
permitted by the terms of the related Mortgage Loan documents. Withdrawals of
amounts so deposited from a Servicing Account may be made only to: (i) effect
payment of items for which Escrow Payments were collected and comparable items;
(ii) reimburse the Trustee, and then the Master Servicer for any Servicing
Advances; (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest to Mortgagors on balances in the Servicing Account,
if required by applicable law or the terms of the related Mortgage Loan or
Companion Loan and as described below or, if not so required, to the Master
Servicer; (v) after the occurrence of an event of default under the related
Mortgage Loan or Companion Loan, apply amounts to the indebtedness under the
applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts deposited in
error; (vii) pay Penalty Charges to the extent permitted by the related Mortgage
Loan documents; or (viii) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. As part of its
servicing duties, the Master Servicer, with respect to the Mortgage Loans it is
obligated to service hereunder, shall pay or cause to be paid to the Mortgagors
interest on funds in Servicing Accounts, to the extent required by law or the
terms of the related Mortgage Loan or Companion Loan; provided, however, in no
event shall the Master Servicer be required to remit to any Mortgagor any
amounts in excess of actual net investment income or funds in the related
Servicing Account. If allowed by the related Mortgage Loan documents and
applicable law, the Master Servicer may charge the related Mortgagor an
administrative fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans (other than any
REO Loan succeeding the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel
Portfolio Servicing Transfer Event), and the Master Servicer, in the case of all
other Mortgage Loans other than the JQH Hotel Portfolio Mortgage Loan after the
JQH Hotel Portfolio Servicing Transfer Event (and each Companion Loan) that it
is responsible for servicing hereunder, shall maintain accurate records with
respect to each related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof. The Special Servicer, in the case of REO Loans (other than any REO Loan
succeeding the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event), and the Master Servicer, in the case of all other
Mortgage Loans and Companion Loans that it is responsible for servicing
hereunder, shall use reasonable efforts consistent with the Servicing Standards
to obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and shall effect payment thereof from the REO Account or by
the Master Servicer as Servicing Advances prior to the applicable penalty or
termination date and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items, employing for such purpose Escrow Payments (which
shall be so applied by the Master Servicer at the written direction of the
Special Servicer in the case of REO Loans) as allowed under the terms of the
related Mortgage Loan (other than the JQH Hotel Portfolio Mortgage Loan after
the JQH Hotel Portfolio Servicing Transfer Event) or Companion Loan. The Master
Servicer shall service and administer any reserve accounts (including
monitoring, maintaining or changing the amounts of required escrows) in
accordance with the terms of such Mortgage Loan and the Servicing Standards. To
the extent that a Mortgage Loan (other than the JQH Hotel Portfolio Mortgage
Loan after the JQH Hotel Portfolio Servicing Transfer Event) (or a Companion
Loan) does not require a Mortgagor to escrow for the payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and similar
items, the Special Servicer, in the case of REO Loans, and the Master Servicer,
in the case of all other Mortgage Loans and Companion Loans that it is
responsible for servicing hereunder, shall use reasonable efforts consistent
with the Servicing Standards to cause the Mortgagor to comply with its
obligation to make payments in respect of such items at the time they first
become due and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans (other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel
Portfolio Servicing Transfer Event) and Serviced Whole Loans that it is
responsible for servicing hereunder, the Master Servicer shall advance all such
funds as are necessary for the purpose of effecting the payment of (i) real
estate taxes, assessments and other similar items that are or may become a lien
thereon, (ii) ground rents (if applicable) and (iii) premiums on Insurance
Policies, in each instance if and to the extent Escrow Payments collected from
the related Mortgagor (or related REO Revenues, if applicable) are insufficient
to pay such item when due and the related Mortgagor has failed to pay such item
on a timely basis, and provided, however, that the particular advance would not,
if made, constitute a Nonrecoverable Servicing Advance and provided, further,
however, with respect to the payment of taxes and assessments, insurance
premiums and rents under any Ground Lease, the Master Servicer shall not be
required to make such advance until the later of (1) five Business Days after
such Master Servicer, the Special Servicer or the Trustee, as applicable, has
received confirmation that such item has not been paid or (2) the date prior to
the date after which any penalty or interest would accrue in respect of such
taxes or assessments or after which a lapse in insurance coverage or a breach
under any Ground Lease would occur as a result of a failure to pay such taxes,
assessments, premiums or payments. The Special Servicer shall give the Master
Servicer and the Trustee no less than five Business Days' written (facsimile or
electronic) notice before the date on which such Master Servicer is requested to
make any Servicing Advance with respect to a given Specially Serviced Mortgage
Loan or REO Property; provided, however, only two Business Days' written
(facsimile or electronic) notice shall be required in respect of Servicing
Advances required to be made on an emergency or urgent basis; provided, further,
the Special Servicer shall not be entitled to make such a request (other than
for Servicing Advances required to be made on an urgent or emergency basis) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer may pay the aggregate
amount of such Servicing Advances listed on a monthly request to the Special
Servicer, in which case the Special Servicer shall remit such Servicing Advances
to the ultimate payees. In addition, the Special Servicer shall provide the
Master Servicer and the Trustee with such information in its possession as the
Master Servicer or the Trustee, as the case may be, may reasonably request to
enable the Master Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Advance. Any
request by the Special Servicer that the Master Servicer make a Servicing
Advance shall be deemed to be a determination by the Special Servicer that such
requested Servicing Advance is not a Nonrecoverable Servicing Advance, and the
Master Servicer shall be entitled to conclusively rely on such determination;
provided that the determination shall not be binding on the Master Servicer or
Trustee. On the first Business Day after the Determination Date for the related
Distribution Date, the Special Servicer shall report to the Master Servicer if
the Special Servicer determines any Servicing Advance previously made by the
Master Servicer with respect to a Specially Serviced Mortgage Loan or REO Loan
is a Nonrecoverable Servicing Advance. The Master Servicer shall be entitled to
conclusively rely on such a determination, and such determination shall be
binding upon the Master Servicer, but shall in no way limit the ability of the
Master Servicer, in the absence of such determination, to make its own
determination that any Advance is a Nonrecoverable Advance. All such Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors and further as provided in Section 3.05. No costs incurred by the
Master Servicer or the Special Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of the
Mortgaged Properties shall, for purposes hereof, including, without limitation,
the Trustee's calculation of monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Mortgage Loans or the
Companion Loans, notwithstanding that the terms of such Mortgage Loans or the
Companion Loans so permit. If the Master Servicer fails to make any required
Servicing Advance as and when due (including any applicable cure periods), to
the extent the Trustee has actual knowledge of such failure, the Trustee shall
make such Servicing Advance pursuant to Section 7.05. Notwithstanding anything
herein to the contrary, no Servicing Advance shall be required hereunder if such
Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance.
In addition, the Master Servicer shall consider Unliquidated Advances in respect
of prior Servicing Advances for purposes of nonrecoverability determinations.
The Special Servicer shall not be required to make Servicing Advances under this
Agreement but may make such Servicing Advances at its option in which event the
Master Servicer shall reimburse the Special Servicer for such Servicing Advance
as provided below.
Not more frequently than once per calendar month, the Special
Servicer shall provide the Master Servicer an Officer's Certificate setting
forth the details of the Servicing Advance, upon which the Master Servicer may
conclusively rely in reimbursing the Special Servicer. The Master Servicer shall
be obligated, out of its own funds, to reimburse the Special Servicer for any
unreimbursed Servicing Advances (other than Nonrecoverable Servicing Advances)
made by the Special Servicer together with interest thereon at the Reimbursement
Rate from the date made to, but not including, the date of reimbursement. Any
such reimbursement, together with any accompanying payment of interest, shall be
made by the Master Servicer, by wire transfer of immediately available funds to
an account designated by the Special Servicer, no later than the first P&I
Advance Date that is at least three (3) Business Days after the date on which
the Master Servicer receives the corresponding Officer's Certificate
contemplated by the prior sentence; provided that any such Officer's Certificate
received after 1:00 p.m., New York City time, on any particular date shall, for
purposes of any such reimbursement, be deemed received on the next succeeding
Business Day. Upon its reimbursement to the Special Servicer of any Servicing
Advance and payment to the Special Servicer of interest thereon, the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer actually made such
Servicing Advance, and accordingly, the Master Servicer shall be entitled to
reimbursement for such Servicing Advance, together with interest accrued
thereon, at the same time, in the same manner and to the same extent as the
Master Servicer would otherwise have been entitled if it had actually made such
Servicing Advance at the time the Special Servicer did.
Notwithstanding the foregoing provisions of this Section 3.03(c),
the Master Servicer shall not be required to reimburse the Special Servicer for,
or to make at the direction of the Special Servicer, any Servicing Advance if
the Master Servicer determines that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
a Nonrecoverable Servicing Advance. The subject Master Servicer shall notify the
Special Servicer in writing of such determination and, if applicable, such
Nonrecoverable Servicing Advance shall be reimbursed to the Special Servicer
pursuant to Section 3.05(a).
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the applicable Certificate Account (which shall be deemed first made from
amounts distributable as principal and then from all other amounts comprising
general collections) to pay for certain expenses set forth below notwithstanding
that the Master Servicer (or Special Servicer, as applicable) has determined
that a Servicing Advance with respect to such expenditure would be a
Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced
Mortgage Loans or REO Loans, the Special Servicer has notified the Master
Servicer to not make such expenditure), where making such expenditure would
prevent (i) the related Mortgaged Property from being uninsured or being sold at
a tax sale or (ii) any event that would cause a loss of the priority of the lien
of the related Mortgage, or the loss of any security for the related Mortgage
Loan; provided that in each instance, the Master Servicer or the Special
Servicer, as applicable, determines in accordance with the Servicing Standards
(as evidenced by an Officer's Certificate delivered to the Trustee) that making
such expenditure is in the best interest of the Certificateholders (and, if
applicable the Companion Holders), all as a collective whole. The Master
Servicer or Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of Section 3.19(c).
The parties acknowledge that pursuant to the BACM 2007-3 Pooling Agreement,
after the JQH Hotel Portfolio Servicing Transfer Event, the BACM 2007-3 Master
Servicer is obligated to make servicing advances with respect to the JQH Hotel
Portfolio Whole Loan. After the JQH Hotel Portfolio Servicing Transfer Event,
the BACM 2007-3 Master Servicer shall be entitled to reimbursement for
nonrecoverable servicing advances with respect to the JQH Hotel Portfolio Whole
Loan (with any accrued and unpaid interest thereon provided for under the BACM
2007-3 Pooling Agreement) in the manner set forth in the BACM 2007-3 Pooling
Agreement and the JQH Hotel Portfolio Intercreditor Agreement.
(d) In connection with its recovery of any Servicing Advance out of
the applicable Certificate Account pursuant to Section 3.05(a), the Trustee and
then the Master Servicer, as the case may be, shall be entitled to receive, out
of any amounts then on deposit in such Certificate Account interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
Servicing Advance from the date made to, but not including, the date of
reimbursement. If there are insufficient funds to reimburse the Trustee or the
Master Servicer interest at the Reimbursement Rate out of the applicable
Certificate Account, such party shall be entitled to receive the amounts
referred to in this Section 3.03(d) out of amounts then on deposit in the other
Certificate Account. Subject to Section 3.19(c), the Master Servicer shall
reimburse itself or the Trustee, as the case may be, for any outstanding
Servicing Advance as soon as practically possible after funds available for such
purpose are deposited in the applicable Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan (other than
the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing
Transfer Event), the Master Servicer shall request from the Mortgagor written
confirmation thereof within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established or
completed. To the extent any repairs, capital improvements, actions or
remediations are required to have been taken or completed pursuant to the terms
of the Mortgage Loan (other than the JQH Hotel Portfolio Mortgage Loan after the
JQH Hotel Portfolio Servicing Transfer Event), the Master Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e) within a reasonable period of time
following such inquiry, the Master Servicer shall promptly report any such
failure to the Special Servicer.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the Floating Rate Account. (a) The Master Servicer shall establish
and maintain, or cause to be established and maintained, a Certificate Account
in which the Master Servicer shall deposit or cause to be deposited on a daily
basis and in no event later than the Business Day following receipt of available
funds (in the case of payments by Mortgagors or other collections on the
Mortgage Loans or Companion Loans), except as otherwise specifically provided
herein, the following payments and collections received or made by or on behalf
of it subsequent to the Cut-off Date (other than in respect of principal and
interest on the Mortgage Loans or Companion Loans due and payable on or before
the Cut-off Date, which payments shall be delivered promptly to the appropriate
Mortgage Loan Seller or its designee and other than any amounts received from
Mortgagors which are received in connection with the purchase of defeasance
collateral), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than (i) Liquidation
Proceeds that are received in connection with the purchase by the Master
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01 and (ii) if
applicable, Liquidation Proceeds that are received in connection with the
purchase of a Companion Loan from a securitization by the related mortgage
loan seller or by the holder of a purchase option pursuant to the related
Intercreditor Agreement or Other Pooling and Servicing Agreement, which
shall be paid directly to the servicer of such securitization) together
with any recovery of Unliquidated Advances in respect of the related
Mortgage Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the applicable Certificate
Account; and
(vii) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy.
Notwithstanding the foregoing requirements, the Master Servicer need
not deposit into its Certificate Account any amount that the Master Servicer
would be authorized to withdraw immediately from such account in accordance with
the terms of Section 3.05 and shall be entitled to instead immediately pay such
amount directly to the Person(s) entitled thereto; provided that such amounts
shall be applied in accordance with the terms hereof and shall be reported as if
deposited in such Certificate Account and then withdrawn.
The foregoing requirements for deposit in any Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
Master Servicer in its Certificate Account. If the Master Servicer shall deposit
in its Certificate Account any amount not required to be deposited therein, it
may at any time withdraw such amount from such Certificate Account, any
provision herein to the contrary notwithstanding. Assumption, extension and
modification fees actually received from Mortgagors on Specially Serviced
Mortgage Loans shall be promptly delivered to the Special Servicer as additional
servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Master
Servicer for deposit into the applicable Certificate Account, in accordance with
this Section 3.04(a). Any such amounts received by the Special Servicer with
respect to an REO Property shall be deposited by the Special Servicer into the
REO Account and remitted to the Master Servicer for deposit into the Certificate
Account, pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
without recourse or warranty such check to the order of the Master Servicer and
shall promptly deliver any such check to the Master Servicer by overnight
courier.
Funds in the Certificate Accounts may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account for the Master Servicer shall be located at the
offices of Wachovia Bank, National Association in Charlotte, North Carolina. The
Master Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the new location of its Certificate Account prior to any change
thereof.
(b) The Trustee, shall establish and maintain the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account, the Floating Rate Account
and the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders (and the Trustee as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests). The Master Servicer shall
deliver to the Trustee each month, on or before the P&I Advance Date therein,
for deposit in the Lower-Tier Distribution Account, that portion of the
Available Distribution Amount attributable to the Mortgage Loans it is obligated
to service hereunder (in each case, calculated without regard to clauses
(a)(iv), (a)(viii), (c) and (d) of the definition of Available Distribution
Amount) for the related Distribution Date and in the Excess Interest
Distribution Account all Excess Interest for the related Distribution Date then
on deposit in the applicable Certificate Account after giving effect to
withdrawals of funds pursuant to Section 3.05(a)(ii)-(xx).
With respect to the Companion Loans (excluding the JQH Hotel
Portfolio Pari Passu Companion Loan after the JQH Hotel Portfolio Servicing
Transfer Event), each Companion Paying Agent shall establish and maintain an
account for each Companion Loan, each of which may be a subaccount of the
applicable Certificate Account, for distributions to each Companion Holder
(each, a "Companion Distribution Account") to be held for the benefit of the
related Companion Holder and shall, promptly upon receipt, deposit in the
Companion Distribution Account any and all amounts received by the Companion
Paying Agent that are required by the terms of this Agreement or the applicable
Intercreditor Agreement to be deposited therein. The Master Servicer shall
deliver to the applicable Companion Paying Agent each month, on or before the
P&I Advance Date therein, for deposit in the Companion Distribution Account, an
aggregate amount of immediately available funds, to the extent of available
funds, equal to the amount to be distributed to the related Companion Holder
pursuant to the terms of this Agreement and the related Intercreditor Agreement.
Notwithstanding the preceding paragraph, the following provisions
shall apply to remittances relating to the Companion Loans related to Serviced
Whole Loans. On each Serviced Whole Loan Remittance Date, the Master Servicer
shall withdraw from the Certificate Account and transfer to the Companion
Distribution Account an aggregate amount equal to all payments and/or
collections actually received on such Companion Loans on or prior to such dates
and not previously so transferred and all amounts then on deposit in the
Certificate Account that represent any reimbursement amount payable to the
related Companion Holder; provided, however, in no event shall the Master
Servicer be required to transfer to the Companion Distribution Account any
portion thereof that is payable or reimbursable to or at the direction of any
party to this Agreement under the other provisions of this Agreement and/or the
related Intercreditor Agreement; provided that if the applicable Companion
Paying Agent and the Master Servicer are the same Person, the Master Servicer
shall not make such transfer and shall make the payments described below. On
each Serviced Whole Loan Remittance Date, the applicable Companion Paying Agent
shall make the payments and remittance described in Section 4.01(j) of this
Agreement, which payments and remittance shall be made, in each case, on the
related Serviced Whole Loan Remittance Date. Notwithstanding anything to the
contrary contained herein, with respect to each Companion Holder, the Master
Servicer shall withdraw from the Certificate Account and remit to the related
Companion Holder, within one Business Day of receipt thereof, any amounts that
represent Late Collections on such Companion Loan or any successor REO Loan with
respect thereto that are received by the Master Servicer subsequent to 5:00 p.m.
(New York City time) on the related Due Date therefor (exclusive of any portion
of such amount payable or reimbursable to any third party in accordance with the
related Intercreditor Agreement or this Agreement).
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account, the Interest Reserve Account, the Floating Rate Account and the
Companion Distribution Account may be subaccounts of a single Eligible Account,
which shall be maintained as a segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, the
Master Servicer shall, as and when required hereunder, deliver to the Trustee
for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19 as Compensating Interest Payments in connection
with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be deposited
in the applicable Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Master
Servicer shall not have delivered to the Trustee for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the amounts
required to be deposited therein pursuant to the provisions of this Agreement
(including any P&I Advance pursuant to Section 4.03(a) hereof), the Master
Servicer shall pay the Trustee interest on such late payment at the Prime Rate
from and including the date such payment was required to be made (without regard
to any grace period set forth in Section 7.01(a)(i)) until (but not including)
the date such late payment is received by the Trustee.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Excess Interest Distribution Account, as applicable,
any and all amounts received by the Trustee that are required by the terms of
this Agreement to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account and deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier Regular Distribution Amount and the amount of any Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively, and then immediately be deemed to withdraw from the
Upper-Tier Distribution Account and deposit in the Floating Rate Account an
aggregate amount of immediately available funds equal to the Class A-2FL
Available Funds and any Yield Maintenance Charges allocated to the Class A-2FL
Regular Interest for such Distribution Date as specified in Sections 4.01(d)(i)
and 4.01(k).
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Floating Rate
Account, the Upper-Tier Distribution Account and the Lower-Tier Distribution
Account may be invested. As of the Closing Date, the Interest Reserve Account,
the Floating Rate Account, the Excess Interest Distribution Account, the
Upper-Tier Distribution Account and the Lower-Tier Distribution Account shall be
located at the Corporate Trust Office of the Trustee. The Trustee shall give
notice to the Master Servicer and the Depositor of the proposed location of such
accounts prior to any change thereof, including the Gain-on-Sale Reserve
Account, if established.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the Master Servicer or Special Servicer pursuant to Section 3.02(d), the
Trustee, on behalf of the Certificateholders, shall establish and maintain the
Excess Interest Distribution Account in the name of the Trustee in trust for the
benefit of the Class S Certificateholders. The Excess Interest Distribution
Account shall be established and maintained as an Eligible Account (or as a
subaccount of an Eligible Account). Prior to the applicable Distribution Date,
the Master Servicer shall remit to the Trustee for deposit in the Excess
Interest Distribution Account an amount equal to the Excess Interest received
prior to the Determination Date for the applicable Due Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
(d) The Trustee shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Trustee. Funds in the Gain-on-Sale Reserve Account may be
invested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Trustee for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the applicable Companion Paying Agent for deposit into the applicable
Companion Distribution Account.
(e) On or before the Closing Date, the Trustee shall establish and
maintain the Class A-2FL Floating Rate Account in trust for the benefit of the
Class A-2FL Certificateholders. The Floating Rate Account shall each (i) at all
times be an Eligible Account and (ii) relate solely to the Class A-2FL
Certificates. The Trustee shall deposit into the Floating Rate Account all
amounts received in respect of distributions on the Class A-2FL Regular Interest
as specified in Section 3.04(b), and shall immediately deposit into the Floating
Rate Account all amounts received under the Swap Contract.
Section 3.05 Permitted Withdrawals from the Certificate Accounts,
the Distribution Accounts, the Companion Distribution Account and the Floating
Rate Account. (a) The Master Servicer may, from time to time, make withdrawals
from its Certificate Account for any of the following purposes (without
duplication of the same payment or reimbursement):
(i) (A) no later than 4:00 p.m. New York City time on each P&I
Advance Date, to remit to the Trustee for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the
amounts required to be remitted pursuant to the first paragraph of Section
3.04(b) and Section 3.04(c) or that may be applied to make P&I Advances
pursuant to Section 4.03(a) and (B) pursuant to the second paragraph of
Section 3.04(b), to remit to the applicable Companion Paying Agent for
deposit in the applicable Companion Distribution Account the amounts
required to be so deposited on the date specified in the related
Intercreditor Agreement with respect to the related Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan (to the extent permitted in the related
Intercreditor Agreement), Specially Serviced Mortgage Loan and REO Loan,
as applicable, the Master Servicer's rights to payment of Servicing Fees
pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan,
as applicable, and any expense incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of related REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
the case of such payment relating to a Serviced Whole Loan, such payment
shall be made first, from amounts collected on the related subordinate
Companion Loan, if any, and then from the related Mortgage Loan and any
related pari passu Companion Loan, pro rata and pari passu in accordance
with their Stated Principal Balances, subject to the terms of the related
Intercreditor Agreement, prior to being payable out of general collections
and provided, further that with respect to any Serviced Whole Loan, such
expenses shall be reimbursed as among the related Companion Loans in the
priority and subject to the limitations set forth in the related
Intercreditor Agreement);
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections of interest
(net of the related Servicing Fees) on and principal of the particular
Mortgage Loans and REO Loans with respect to which such P&I Advances were
made; provided, however, if such P&I Advance becomes a Workout-Delayed
Reimbursement Amount, then such P&I Advance shall thereafter be reimbursed
from the portion of general collections and recoveries on or in respect of
the Mortgage Loans and REO Properties on deposit in its Certificate
Account (and from funds in the other Certificate Account) from time to
time that represent collections or recoveries of principal to the extent
provided in clause (v) below (to be allocated between the Loan Groups as
set forth in the last paragraph of Section 3.05 (a)) or, in the
circumstances specified in Section 3.19(c), from general collections
(provided that with respect to any Serviced Mortgage Loan, reimbursement
of P&I Advances shall be made only from amounts collected with respect to
such Serviced Mortgage Loan (and not from any amounts collected with
respect to the related Companion Loan) prior to reimbursement from other
funds unrelated to the related Serviced Whole Loan on deposit in the
Certificate Account);
(iv) to reimburse the Trustee and itself, as applicable (in that
order), for unreimbursed Servicing Advances, the Master Servicer's or the
Trustee's respective rights to receive payment pursuant to this clause
(iv) with respect to any Mortgage Loan (other than the JQH Hotel Portfolio
Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event),
Companion Loan or REO Property being limited to, as applicable, related
payments, Liquidation Proceeds, Insurance and Condemnation Proceeds and
REO Revenues (provided that, in case of such reimbursement relating to an
Serviced Whole Loan, such reimbursements shall be made first, from amounts
collected on the related subordinate Companion Loan, if any, and then from
the related Mortgage Loan and pari passu Companion Loan(s), pro rata and
pari passu based on their Stated Principal Balances, subject to, and in
accordance with, the terms of the related Intercreditor Agreement, prior
to being payable out of general collections); provided, however, if such
Servicing Advance becomes a Workout Delayed Reimbursement Amount, then
such Servicing Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in its Certificate Account (and from funds
in the other Certificate Account) from time to time that represent
collections or recoveries of principal to the extent provided in clause
(v) below (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05(a)) or, in the circumstances specified in
Section 3.19(c), from general collections;
(v) to reimburse the Trustee, itself, as applicable (in that order)
(1) for Nonrecoverable Advances (including Workout-Delayed Reimbursement
Amounts that constitute Nonrecoverable Advances) first, out of REO
Revenues, Liquidation Proceeds and Insurance and Condemnation Proceeds
received on the related Mortgage Loan and Companion Loan, then, out of the
principal portion of general collections on the Mortgage Loans and REO
Properties (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05 (a)), then, to the extent the principal
portion of general collections is insufficient and with respect to such
excess only, subject to any exercise of the sole option to defer
reimbursement thereof pursuant to Section 3.19(c), out of other
collections on the Mortgage Loans and REO Properties and, (2) with respect
to the Workout-Delayed Reimbursement Amounts that are not Nonrecoverable
Advances, out of the principal portion of the general collections on the
Mortgage Loans and REO Properties (to be allocated between the Loan Groups
as set forth in the last paragraph of Section 3.05 (a)), net of such
amounts being reimbursed pursuant to (1) above (provided that, in the case
of such reimbursement relating to a Serviced Whole Loan, such
reimbursements shall be made first from amounts collected on any related
subordinate Companion Loan and then from the related Mortgage Loan and any
related pari passu Companion Loan(s), pro rata and pari passu based on
their related Stated Principal Balances, subject to and in accordance with
the related Intercreditor Agreement, prior to being payable out of general
collections) or to pay itself, with respect to any Mortgage Loan and the
Companion Loans, if applicable, or REO Property any related earned
Servicing Fee that remained unpaid in accordance with clause (ii) above
following a Final Recovery Determination made with respect to such
Mortgage Loan or REO Property and the deposit into the applicable
Certificate Account of all amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order) or any servicing party for a related
securitization trust in respect of any Serviced Securitized Companion Loan
for (a) any xxxxxxxxxxxx X&X Advance (including any such P&I Advance that
constitutes a Workout Delayed Reimbursement Amount) pursuant to clause
(iii) above, to pay itself or the Trustee or such other servicing party,
as applicable, any interest accrued and payable thereon in accordance with
Sections 4.03(d) and 3.11(c), (b) any unreimbursed Servicing Advances
(including any such Servicing Advance that constitutes a Workout Delayed
Reimbursement Amount) pursuant to clause (iv) above, to pay itself or the
Trustee, as the case may be, any interest accrued and payable thereon in
accordance with Sections 3.03(d) and 3.11(c) or (c) any Nonrecoverable
Advances pursuant to clause (v) above, to pay itself or the Trustee or
such other servicing party, as the case may be, any interest accrued and
payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan being limited to that portion of the Purchase Price or Substitution
Shortfall Amount paid with respect to such Mortgage Loan that represents
such expense in accordance with clause (iii) or clause (iv) of the
definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties, for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 6 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (provided that, in case of such reimbursement
relating to a Serviced Whole Loan, such reimbursements shall be made
first, from amounts collected on the related subordinate Companion Loan,
if any, and then from the related Mortgage Loan and any related pari passu
Companion Loan, pro rata and pari passu in accordance with their Stated
Principal Balances, subject to, and in accordance with, the terms of the
related Intercreditor Agreement prior to being payable out of general
collections);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
case of such reimbursement relating to a Serviced Whole Loan, such
reimbursements shall be made first, from amounts collected on the related
subordinate Companion Loan, if any, and then from the related Mortgage
Loan and any related pari passu Companion Loan, pro rata and pari passu in
accordance with their Stated Principal Balances, subject to, and in
accordance with, the terms of the related Intercreditor Agreement prior to
being payable out of general collections);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in its
Certificate Account and the Companion Distribution Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings
with respect to its Certificate Account and the Companion Distribution
Account for the period from and including the prior P&I Advance Date to
but excluding the P&I Advance Date related to such Distribution Date) and
(B) Penalty Charges (other than Penalty Charges collected while the
related Mortgage Loan is a Specially Serviced Mortgage Loan), but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
have been paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other than
Special Servicing Fees) in accordance with Section 3.11(d); and (b) to pay
the Special Servicer, as additional servicing compensation in accordance
with Section 3.11(c), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the applicable Certificate
Account in error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, out of general collections, any amounts
payable to any such Person pursuant to Section 6.03(a) or 6.03(b)
(provided that, in case of such payments relating to a Serviced Whole
Loan, such reimbursements shall be made first, from amounts collected on
the related subordinate Companion Loan, if any, and then from the related
Mortgage Loan and any related pari passu Companion Loan, pro rata and pari
passu in accordance with their Stated Principal Balances, subject to and
in accordance with the terms of the related Intercreditor Agreement, prior
to being payable out of general collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Master Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a) (provided that, in case of such
payments relating to a Serviced Whole Loan, such reimbursements shall be
made first, from amounts collected on the related subordinate Companion
Loan, if any, and then from the related Mortgage Loan and any related pari
passu Companion Loan, pro rata and pari passu in accordance with their
Stated Principal Balances, subject to and in accordance with the terms of
the related Intercreditor Agreement, prior to being payable out of general
collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicer, the Special Servicer or the
Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the applicable Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase; or, in the
case of the substitution for a Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 2.03(b), to pay such Mortgage Loan Seller with respect
to the replaced Mortgage Loan all amounts received thereon subsequent to
the date of substitution, and with respect to the related Qualified
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the last two
sentences of the first paragraph of Section 2.03(b);
(xvii) to remit to the Trustee for deposit in the Interest Reserve
Account the amounts required to be deposited in the Interest Reserve
Account pursuant to Section 3.25;
(xviii) to clear and terminate the applicable Certificate Account at
the termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the applicable Companion Paying Agent for deposit
into the applicable Companion Distribution Account the amounts required to
be deposited pursuant to the second paragraph of Section 3.04(b); and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
After the JQH Hotel Portfolio Servicing Transfer Event, the Master
Servicer shall also be entitled to make withdrawals from time to time, from the
Certificate Account of amounts necessary for the payments or reimbursement of
amounts required to be paid to the BACM 2007-3 Master Servicer, the BACM 2007-3
Special Servicer or the BACM 2007-3 Trustee by the holder of the JQH Hotel
Portfolio Mortgage Loan pursuant to the JQH Hotel Portfolio Intercreditor
Agreement.
The Master Servicer for each Serviced Whole Loan shall also make
withdrawals from time to time, from the Certificate Account of amounts necessary
for the payments or reimbursements provided for under the related Intercreditor
Agreement with respect to the related Companion Loan(s) within one Business Day
of receipt of such amounts pursuant to the related Intercreditor Agreement.
The Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from its Certificate Account.
The Master Servicer shall pay to the Special Servicer or the Trustee
from its Certificate Account amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a Servicing Officer of the Special
Servicer or a Responsible Officer of the Trustee describing the item and amount
to which the Special Servicer or the Trustee is entitled. The Master Servicer
may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the applicable Certificate Account.
To the extent a Nonrecoverable Advance or Workout Delayed Reimbursement Amount
with respect to a Mortgage Loan is required to be reimbursed from the principal
portion of the general collections on the Mortgage Loans pursuant to clauses
(iii), (iv) or (v) of this Section 3.05(a), such reimbursement shall be made
first, from the principal collection available on the Mortgage Loans included in
the same Loan Group as such Mortgage Loan and if the principal collections in
such Loan Group are not sufficient to make such reimbursement in full, then from
the principal collections available in the other Loan Group (after giving effect
to any reimbursement of Nonrecoverable Advances and Workout Delayed
Reimbursement Amounts related to such other Loan Group. To the extent a
Nonrecoverable Advance with respect to a Mortgage Loan is required to be
reimbursed from the interest portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the interest collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the interest collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the interest collections available in the other
Loan Group (after giving effect to any reimbursement of Nonrecoverable Advances
related to such other Loan Group).
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to be deemed to make deposits of the Lower-Tier Regular
Distribution Amount pursuant to Section 4.01(b) and to distribute the
amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) in the Upper-Tier Distribution Account, and to make distributions
on the Class LR Certificates pursuant to Section 4.01(b);
(ii) [RESERVED];
(iii) [RESERVED];
(iv) to pay to the Trustee or any of its directors, officers,
employees and agents any amounts payable or reimbursable to any such
Person, with respect to the Mortgage Loans, pursuant to Section 8.05(b);
(v) to pay the Trustee, the Trustee Fee as contemplated by Section
8.05(a) hereof with respect to the Mortgage Loans;
(vi) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization," (B) as contemplated by Section 3.20(d), 8.02(ii) and
10.01(f), or (C) as contemplated by Section 12.01(a) or 12.01(c) in
connection with any amendment to this Agreement requested by the Trustee,
which amendment is in furtherance of the rights and interests of
Certificateholders, in each case, to the extent not paid pursuant to
Section 12.01(g);
(vii) to pay any and all federal, state and local taxes imposed on
either of the Lower-Tier REMIC or the Upper-Tier REMIC or on the assets or
transactions of either such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the REMIC Administrator, the
Master Servicer or the Special Servicer is liable therefor pursuant to
Section 10.01(g);
(viii) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(ix) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(x) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee shall, on any Distribution Date, make withdrawals
from the Excess Interest Distribution Account to the extent required to make the
distributions of Excess Interest required by Section 4.01(l).
(d) The Trustee may make, or be deemed to make, withdrawals from the
Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class A-2FL Certificates, the Class S Certificates and the Class LR
Certificates) and to the Floating Rate Account in respect of the Class
A-2FL Regular Interest on each Distribution Date pursuant to Section 4.01
or 9.01, as applicable, subject to the penultimate paragraph of Section
3.04(b);
(ii) [RESERVED]; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in any Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(v), then the Trustee Fee shall be paid in full prior to the
payment of any Servicing Fees payable under Section 3.05(a)(ii) and in the event
that amounts on deposit in any Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of such Trustee
Fee, the Trustee shall be paid based on the amount of such fees and (ii) if
amounts on deposit in any Certificate Account are not sufficient to reimburse
the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and second to the Master Servicer.
(f) Each Companion Paying Agent may, from time to time, make
withdrawals from its Companion Distribution Account to make distributions
pursuant to Section 4.01(i).
(g) The Trustee shall make withdrawals from the respective Floating
Rate Account only for the following purposes:
(i) to withdraw amounts deposited in the respective Floating Rate
Account in error and pay such amounts to the Persons entitled thereto;
(ii) to pay any funds required to be paid to the Swap Counterparty
under the respective Swap Contract as specified in Section 3.31(c), and to
pay costs or expenses, if any, related to the respective Swap Contract
pursuant to Section 3.31(f);
(iii) to make distributions to the Holders of the Class A-2FL
Certificates pursuant to Section 4.01(k); and
(iv) to clear and terminate the respective Floating Rate Account
pursuant to Section 9.01.
Section 3.06 Investment of Funds in the Certificate Accounts, the
Distribution Accounts, the Gain-on-Sale Reserve Account, the Interest Reserve
Account and the REO Account. (a) The Master Servicer may direct any depository
institution maintaining its Certificate Account, Companion Distribution Account,
or any Servicing Account (for purposes of this Section 3.06, an "Investment
Account"), the Special Servicer may direct any depository institution
maintaining the REO Account (also for purposes of this Section 3.06, an
"Investment Account"), the Trustee may direct any depository institution
maintaining its Distribution Accounts, Gain-on-Sale Reserve Account and Interest
Reserve Account, (also for purposes of this Section 3.06, an "Investment
Account"), to invest or if it is such depository institution, may itself invest,
the funds held therein, only in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, (i) no
later than the Business Day immediately preceding the next succeeding date on
which such funds are required to be withdrawn from such account pursuant to this
Agreement, if a Person other than the depository institution maintaining such
account is the obligor thereon and (ii) no later than the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if the depository institution maintaining such account is the obligor thereon.
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee (in its capacity as such). The Master Servicer (in the case
of each Certificate Account, Companion Distribution Account, or any Servicing
Account maintained by or for the Master Servicer), the Special Servicer (in the
case of the REO Account or any Servicing Account maintained by or for the
Special Servicer), or the Trustee (in the case of the Distribution Accounts,
Gain-on-Sale Reserve Account and Interest Reserve Account), on behalf of the
Trustee, shall maintain continuous physical possession of any Permitted
Investment of amounts in each Certificate Account, Companion Distribution
Account, the Servicing Accounts, REO Account, Gain-on-Sale Reserve Account and
Interest Reserve Account, as applicable, that is either (i) a "certificated
security," as such term is defined in the UCC (such that the Trustee shall have
control pursuant to Section 8-106 of the UCC) or (ii) other property in which a
secured party may perfect its security interest by physical possession under the
UCC or any other applicable law. In the case of any Permitted Investment held in
the form of a "security entitlement" (within the meaning of Section 8-102(a)(17)
of the UCC), the Master Servicer or the Special Servicer, as applicable, shall
take or cause to be taken such action as the Trustee deems reasonably necessary
to cause the Trustee to have control over such security entitlement. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of the
Certificate Account, Companion Distribution Account, or any Servicing Account
maintained by or for the Master Servicer), the Special Servicer (in the case of
the REO Account or any Servicing Account maintained by or for the Special
Servicer), or the Trustee (in the case of the Distribution Accounts,
Gain-on-Sale Reserve Account and Interest Reserve Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the applicable Certificate Account, Companion Distribution Account, or any
Servicing Account maintained by or for the Master Servicer, to the extent of the
Net Investment Earnings, if any, with respect to such account for the period
from and including the prior P&I Advance Date to but excluding the immediately
succeeding P&I Advance Date, shall be for the sole and exclusive benefit of the
Master Servicer to the extent not required to be paid to the related Mortgagor
and shall be subject to its withdrawal, or withdrawal at its direction, in
accordance with Sections 3.03 or Section 3.05(a), as the case may be. Interest
and investment income realized on funds deposited in the REO Account or any
Servicing Account maintained by or for the Special Servicer, to the extent of
the Net Investment Earnings, if any, with respect to such account for each
period from and including any P&I Advance Date to but excluding the immediately
succeeding P&I Advance Date, shall be for the sole and exclusive benefit of the
Special Servicer and shall be subject to its withdrawal in accordance with
Section 3.16(c). Interest and investment income realized on funds deposited in
the Distribution Accounts, Gain-on-Sale Reserve Account or Interest Reserve
Account maintained by the Trustee, shall be for the sole and exclusive benefit
of the Trustee. In the event that any loss shall be incurred in respect of any
Permitted Investment (other than any Permitted Investment the income with
respect to which would have been required to be paid to the related Mortgagor)
directed to be made by the Master Servicer, Special Servicer or Trustee, as
applicable, and on deposit in any of the Certificate Account, Companion
Distribution Account, the Servicing Account, the REO Account, Distribution
Accounts, Gain-on-Sale Reserve Account or Interest Reserve Account, the Master
Servicer (in the case of the Certificate Account, Companion Distribution
Account, or any Servicing Account maintained by or for the Master Servicer), the
Special Servicer (in the case of the REO Account or any Servicing Account
maintained by or for the Special Servicer) and the Trustee (in the case of the
Distribution Accounts, the Gain-on-Sale Reserve Account and the Interest Reserve
Account) shall deposit therein, no later than the P&I Advance Date, without
right of reimbursement, the amount of Net Investment Loss, if any, with respect
to such account for the period from and including the prior P&I Advance Date, to
and including the immediately succeeding P&I Advance Date; provided that neither
the Master Servicer, the Special Servicer nor the Trustee shall be required to
deposit any loss on an investment of funds in an Investment Account if such loss
is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company that holds such Investment
Account, so long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made (and, with respect to the Master Servicer, such federal or
state chartered depository institution or trust company is not an Affiliate of
the Master Servicer unless such depository institution or trust company
satisfied the qualification set forth in the definition of Eligible Account both
(x) at the time the investment was made and (y) 30 days prior to such
insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Master Servicer may and, upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage
Loans (including the Serviced Whole Loans and other than the JQH Hotel Portfolio
Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event) it is
obligated to service hereunder and the related Specially Serviced Mortgage
Loans) or the Special Servicer (with respect to REO Properties other than the
JQH Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing
Transfer Event) shall use efforts consistent with the Servicing Standards to
cause the Mortgagor to maintain (other than the JQH Hotel Portfolio Mortgage
Loan after the JQH Hotel Portfolio Servicing Transfer Event), to the extent
required by the terms of the related Mortgage Loan all insurance coverage as is
required under the related Mortgage Loan except to the extent that the failure
of the related Mortgagor to do so is an Acceptable Insurance Default. If the
Mortgagor does not so maintain such insurance coverage, subject to its
recoverability determination with respect to any required Servicing Advance, the
Master Servicer (with respect to the Mortgage Loans, Companion Loans and
Serviced Whole Loans, and other than the JQH Hotel Portfolio Mortgage Loan after
the JQH Hotel Portfolio Servicing Transfer Event) or the Special Servicer (with
respect to REO Properties other than the JQH Hotel Portfolio Mortgaged Property
after the JQH Hotel Portfolio Servicing Transfer Event) shall maintain all
insurance coverage as is required under the related Mortgage Loan but only in
the event the Trustee has an insurable interest therein and such insurance is
available to the Master Servicer or the Special Servicer and, if available, can
be obtained at commercially reasonable rates, as determined by the Master
Servicer (with respect to Mortgage Loans and Serviced Whole Loans and other than
the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing
Transfer Event) (or in the case of insurance against property damage resulting
from terrorist or similar acts or insurance with respect to REO Properties other
than the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio
Servicing Transfer Event, the Special Servicer) except to the extent that the
failure of the related Mortgagor to do so is an Acceptable Insurance Default;
provided, however, if any Mortgage Loan permits the holder thereof to dictate to
the Mortgagor the insurance coverage to be maintained on such Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may be, shall
impose such insurance requirements as are consistent with the Servicing
Standards taking into account the insurance in place at the closing of the
Mortgage Loan; provided that, with respect to the immediately preceding proviso,
the Master Servicer or the Special Servicer, as the case may be, will be
obligated to maintain insurance against property damage resulting from terrorist
or similar acts unless the Mortgagor's failure is an Acceptable Insurance
Default and only in the event the Trustee has an insurable interest therein and
such insurance is available to the Master Servicer or the Special Servicer, as
the case may be, and, if available, can be obtained at commercially reasonable
rates as determined by the Master Servicer. Subject to Section 3.17(a) and the
costs of such insurance being reimbursed or paid to the Special Servicer as
provided in the penultimate sentence of this paragraph, the Special Servicer
shall maintain for each REO Property (other than the JQH Hotel Portfolio
Mortgaged Property after the JQH Hotel Portfolio Servicing Transfer Event) no
less insurance coverage than was previously required of the Mortgagor under the
related Mortgage Loan and Companion Loan unless the Special Servicer, with
Directing Certificateholder consent, determines that such insurance is not
available at commercially reasonable rates; provided that the Master Servicer
shall be entitled to conclusively rely on such determination. All Insurance
Policies that insure against loss to the property and are maintained by the
Master Servicer or the Special Servicer shall (i) contain a "standard" mortgagee
clause, with loss payable to the Master Servicer on behalf of the Trustee (in
the case of insurance maintained in respect of Mortgage Loans and Companion
Loans other than REO Properties) or to the Special Servicer on behalf of the
Trustee (in the case of insurance maintained in respect of REO Properties), (ii)
be in the name of the Trustee (in the case of insurance maintained in respect of
REO Properties), (iii) include coverage in an amount not less than the lesser of
(x) the full replacement cost of the improvements securing Mortgaged Property or
the REO Property, as applicable, or (y) the outstanding principal balance owing
on the related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in
any event, the amount necessary to avoid the operation of any co-insurance
provisions, (iv) include a replacement cost endorsement providing no deduction
for depreciation (unless such endorsement is not permitted under the related
Mortgage Loan documents), (v) be noncancellable without 30 days prior written
notice to the insured party (except in the case of nonpayment, in which case
such policy shall not be cancelled without 10 days prior notice) and (vi)
subject to the proviso in the second sentence of this Section 3.07, be issued by
a Qualified Insurer authorized under applicable law to issue such Insurance
Policies. Any amounts collected by the Master Servicer or the Special Servicer
under any Insurance Policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
the Servicing Standards and the provisions of the related Mortgage Loan and
Companion Loan) shall be deposited in the applicable Certificate Account,
subject to withdrawal pursuant to Section 3.05(a). Any costs incurred by the
Master Servicer in maintaining any Insurance Policies in respect of Mortgage
Loans and Companion Loans (other than REO Properties) (i) if the Mortgagor
defaults on its obligation to do so, shall be advanced by the Master Servicer as
a Servicing Advance and will be charged to the related Mortgagor and (ii) shall
not, for purposes of calculating monthly distributions to Certificateholders and
Companion Holders, be added to the unpaid principal balance of the related
Mortgage Loan and Companion Loan, notwithstanding that the terms of such
Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special
Servicer in maintaining any Insurance Policies with respect to REO Properties
shall be an expense of the Trust payable out of the related REO Account pursuant
to Section 3.16(c) or, if the amount on deposit therein is insufficient
therefor, advanced by the Master Servicer as a Servicing Advance. The foregoing
provisions of this paragraph shall apply to a Mortgage Loan and its related
Companion Loan as if each pair were a single "Mortgage Loan".
Notwithstanding the foregoing, with respect to the Mortgage Loans
(other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event) or the Companion Loans that either (x) require the
Mortgagor to maintain "all risk" property insurance (and do not expressly permit
an exclusion for terrorism) or (y) contain provisions generally requiring the
applicable Mortgagor to maintain insurance in types and against such risks as
the holder of such Mortgage Loan or the Companion Loans reasonably requires from
time to time in order to protect its interests, the Master Servicer will be
required to, consistent with the Servicing Standards, (A) actively monitor
whether the insurance policies for the related Mortgaged Property contain
Additional Exclusions, (B) request the Mortgagor to either purchase insurance
against the risks specified in the Additional Exclusions or provide an
explanation as to its reasons for failing to purchase such insurance and (C)
notify the Special Servicer if it has knowledge (such knowledge to be based on
the Master Servicer's compliance with the immediately preceding clauses (A) and
(B)) that any insurance policy contains Additional Exclusions or if it has
knowledge (such knowledge to be based on the Master Servicer's compliance with
the immediately preceding clauses (A) and (B)) that any borrower fails to
purchase the insurance requested to be purchased by the Master Servicer pursuant
to clause (B) above. If the Special Servicer determines in accordance with the
Servicing Standards that such failure is not an Acceptable Insurance Default,
the Special Servicer shall notify the Master Servicer and the Master Servicer
shall cause such insurance to be maintained in accordance with this Section
3.07(a). Furthermore, the Special Servicer shall inform the Rating Agencies as
to such conclusions for those Mortgage Loans that (i) have one of the ten (10)
highest outstanding Stated Principal Balances of all of the Mortgage Loans then
included in the Trust or (ii) comprise more than 5% of the outstanding Stated
Principal Balance of the Mortgage Loans then included in the Trust. During the
period that the Special Servicer is evaluating the Master Servicer's
determination of the availability of such insurance, the Master Servicer will
not be liable for any loss related to its failure to require the Mortgagor to
maintain such insurance and will not be in default of its obligations as a
result of such failure and the Master Servicer will not itself maintain such
insurance or cause such insurance to be maintained.
Notwithstanding the foregoing, the Master Servicer will not be
required to maintain or cause to be maintained any earthquake or environmental
insurance on a Mortgaged Property unless such insurance was in effect as of
origination of the Mortgage Loan or the date of initial issuance of the
Certificates and such insurance is available at commercially reasonable rates.
Each of the Master Servicer and the Special Servicer will be
entitled to rely on insurance consultants in making the determination described
in the definition of "Acceptable Insurance Default" (as well as determinations
of whether particular exclusions constitute additional exclusions) and the cost
of such expense shall be paid from the Certificate Account as a Servicing
Advance.
(b) (i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket Insurance Policy with a Qualified Insurer insuring
against fire and hazard losses on all of the Mortgage Loans, including the
Serviced Whole Loans, or REO Properties (other than with respect to the JQH
Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing
Transfer Event), as the case may be, required to be serviced and administered
hereunder, then, to the extent such Insurance Policy provides protection
equivalent to the individual policies otherwise required, the Master Servicer or
the Special Servicer shall conclusively be deemed to have satisfied its
obligation to cause fire and hazard insurance to be maintained on the related
Mortgaged Properties or REO Properties. Such Insurance Policy may contain a
deductible clause, in which case the Master Servicer or the Special Servicer
shall, if there shall not have been maintained on the related Mortgaged Property
or REO Property a fire and hazard Insurance Policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such Insurance Policy, promptly deposit into
the applicable Certificate Account from its own funds the amount of such loss or
losses that would have been covered under the individual policy but are not
covered under the blanket Insurance Policy because of such deductible clause to
the extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, including any Serviced Whole Loan, or in
the absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards. In connection with its activities as
administrator and Master Servicer of the Mortgage Loans, the Master Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket Insurance Policy in a timely
fashion in accordance with the terms of such policy. The Special Servicer, to
the extent consistent with the Servicing Standards, may maintain, earthquake
insurance on REO Properties; provided coverage is available at commercially
reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If the Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property (other than with respect to the JQH
Hotel Portfolio Mortgaged Property after the JQH Hotel Portfolio Servicing
Transfer Event) to be covered by a master single interest or force-placed
insurance policy with a Qualified Insurer naming the Master Servicer or
the Special Servicer, as applicable, on behalf of the Trustee as the loss
payee, then to the extent such Insurance Policy provides protection
equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer shall conclusively be deemed to have
satisfied its obligation to cause such insurance to be maintained on the
related Mortgaged Properties and REO Properties. In the event the Master
Servicer or the Special Servicer shall cause any Mortgaged Property or REO
Property (other than with respect to the JQH Hotel Portfolio Mortgaged
Property after the JQH Hotel Portfolio Servicing Transfer Event) to be
covered by such master single interest or force-placed insurance policy,
the incremental costs of such insurance applicable to such Mortgaged
Property or REO Property (i.e. other than any minimum or standby premium
payable for such policy whether or not any Mortgaged Property or REO
Property is covered thereby) shall be paid by the Master Servicer as a
Servicing Advance. Such master single interest or force-placed policy may
contain a deductible clause, in which case the Master Servicer or the
Special Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy
otherwise complying with the provisions of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
policy had it been maintained, deposit into its Certificate Account from
its own funds the amount not otherwise payable under the master single or
force-placed interest policy because of such deductible clause, to the
extent that any such deductible exceeds the deductible limitation that
pertained to the related Mortgage Loan, including any Serviced Whole Loan
or, in the absence of any such deductible limitation, the deductible
limitation which is consistent with the Servicing Standards.
(c) The Master Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Master Servicer's and the
Special Servicer's, as the case may be, officers and employees acting on behalf
of the Master Servicer and the Special Servicer in connection with its
activities under this Agreement. Notwithstanding the foregoing, so long as the
long term debt or the deposit obligations or claims-paying ability of the Master
Servicer or the Special Servicer, as the case may be, is rated at least "A3" by
Xxxxx'x and "A" by S&P, the Master Servicer or the Special Servicer, as
applicable, shall be allowed to provide self-insurance with respect to a
fidelity bond and an "errors and omissions" Insurance Policy. Such amount of
coverage shall be in such form and amount as are consistent with the Servicing
Standards. Coverage of the Master Servicer or the Special Servicer under a
policy or bond obtained by an Affiliate of the Master Servicer or the Special
Servicer and providing the coverage required by this Section 3.07(c) shall
satisfy the requirements of this Section 3.07(c). The Special Servicer and the
Master Servicer will promptly report in writing to the Trustee any material
changes that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicer and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c); provided, however
that the Special Servicer shall not be required to cause the Trustee to be an
additional loss payee with respect to the Special Servicer's errors and
omissions Insurance Policy. (d) At the time the Master Servicer determines in
accordance with the Servicing Standards that any Mortgaged Property securing a
Mortgage Loan it is obligated to service hereunder is in a federally designated
special flood hazard area (and such flood insurance has been made available),
the Master Servicer will use efforts consistent with the Servicing Standards to
cause the related Mortgagor (in accordance with applicable law and the terms of
the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by the Master
Servicer, in accordance with the Servicing Standards and to the extent the
Trustee, as mortgagee, has an insurable interest therein), flood insurance in
respect thereof, but only to the extent the related Mortgage Loan or Companion
Loan permits the mortgagee to require such coverage and the maintenance of such
coverage is consistent with the Servicing Standards. Such flood insurance shall
be in an amount equal to the lesser of (i) the unpaid principal balance of the
related Mortgage Loan and Companion Loan, and (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the Master Servicer shall promptly make a Servicing Advance for such
costs.
(e) During all such times as any REO Property (other than with
respect to the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel
Portfolio Servicing Transfer Event) shall be located in a federally designated
special flood hazard area, the Special Servicer will cause to be maintained, to
the extent available at commercially reasonable rates (as determined by the
Special Servicer in accordance with the Servicing Standards), a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration in an amount representing coverage not less than the
maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Master Servicer as a Servicing
Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) Subject to Section 3.28, as to each Mortgage Loan (other than
the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing
Transfer Event) or Companion Loan which contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or ownership
interest in the related Mortgagor or principals of the Mortgagor; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) the rights
of the lender in the Mortgage Loan Documents provided, that (i) with respect to
all Non-Specially Serviced Mortgage Loans, the Master Servicer has obtained the
prior written consent of the Special Servicer, which consent shall be deemed
given 15 Business Days after receipt by the Special Servicer from the Master
Servicer of the Master Servicer's analysis and recommendation with respect to
such waiver together with such other information reasonably required by the
Special Servicer, (ii) with respect to all Specially Serviced Mortgage Loans and
Non-Specially Serviced Mortgage Loans, the Special Servicer shall, prior to
consenting to such a proposed action of the Master Servicer, obtain, and, prior
to itself taking such an action, the Special Servicer shall obtain, the prior
written consent of the Directing Certificateholder, which consent shall be
deemed given 10 Business Days after receipt by the Directing Certificateholder
of the Master Servicer's and Special Servicer's, as applicable, analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Directing Certificateholder, and (iii) with respect
to any Mortgage Loan (x) with a Stated Principal Balance greater than or equal
to $20,000,000, (y) with a Stated Principal Balance greater than 5% of the
aggregate Stated Principal Balance of all the Mortgage Loans then outstanding or
(z) together with any other Mortgage Loans cross-collateralized with such
Mortgage Loan, or together with all other Mortgage Loans with the same or an
affiliated Mortgagor, is one of the ten largest of the then outstanding Mortgage
Loans, by Stated Principal Balance, the Master Servicer or the Special Servicer,
as the case may be, shall not take such action unless it has obtained
confirmation from each Rating Agency stating that none of the then-current
rating or ratings of all outstanding Classes of the Certificates and, if
applicable, of the Companion Loan Securities, would be qualified, downgraded or
withdrawn by such Rating Agency, as a result of such waiver.
Notwithstanding anything herein to the contrary, the Master Servicer
shall approve and close, without the consent of the Special Servicer or the
Directing Certificateholder, all transfers of tenants-in-common ownership
interests contemplated by and in accordance with the related Mortgage Loan
Documents for those Mortgage Loans set forth on Exhibit CC; provided such
Mortgage Loans are Non-Specially Serviced Mortgage Loans and there are no
waivers or modifications with respect to conditions for such transfers set forth
in the applicable Mortgage Loan Documents as of the Closing Date. Upon
completion of any such transfer, the Master Servicer shall promptly (i) provide
notice thereof to the Special Servicer and the Directing Certificateholder and
(ii) advise the Special Servicer and the Directing Certificateholder as to total
number of transfers with respect to such Non-Specially Serviced Mortgage Loan
that the Master Servicer has approved and closed as of such date and the
expiration date (if any) by which any such transfer(s) must occur pursuant to
the related Mortgage Loan Documents.
(b) Subject to Section 3.28, as to each Mortgage Loan (other than
the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing
Transfer Event) and Companion Loan which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property
or ownership interest in the related Mortgagor or principals of the
Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property or ownership interest in the related Mortgagor or principals of
the Mortgagor;
then, for so long as such Mortgage Loan and Companion Loan is serviced under
this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) any right
it may have with respect to such Mortgage Loan or Companion Loan (x) to
accelerate the payments thereon or (y) to withhold its consent; provided that
(i) (a) with respect to all Non-Specially Serviced Mortgage Loans, the Master
Servicer has made a recommendation and obtained the prior written consent of the
Special Servicer, which consent shall be deemed given fifteen (15) Business Days
after receipt by the Special Servicer from the Master Servicer of the Master
Servicer's analysis and recommendation with respect to such waiver together with
such other information reasonably required by the Special Servicer and (b) the
Special Servicer has obtained (i) the prior written consent of the Directing
Certificateholder, which consent shall be deemed given 10 Business Days after
receipt by the Directing Certificateholder of the Special Servicer's analysis
and recommendation with respect to such waiver together with such other
information reasonably required by the Directing Certificateholder, and (ii)
from each Rating Agency a confirmation that such waiver would not result in the
downgrade, withdrawal or qualification of the then-current ratings on any Class
of outstanding Certificates or any class of Companion Loan Securities if such
Mortgage Loan (1) has an outstanding principal balance (together with any
Mortgage Loans cross-collateralized with such Mortgage Loan) that is greater
than or equal to 2% of the Stated Principal Balance of the outstanding Mortgage
Loans or (2) has an LTV Ratio (including existing and proposed debt) greater
than 85% (including any proposed debt) or (3) a Debt Service Coverage Ratio less
than 1.20x (in each case, determined based upon the aggregate of the Stated
Principal Balance of the Mortgage Loan and the principal amount of the proposed
additional loan) or (4) is one of the ten (10) largest Mortgage Loans (by Stated
Principal Balance) or (5) has a Stated Principal Balance over $20,000,000.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master Servicer nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Special Servicer shall provide copies of any waivers it effects pursuant to
Section 3.08(a) or (b) to the Master Servicer and each Rating Agency with
respect to each Mortgage Loan. To the extent not previously provided, the Master
Servicer shall provide copies of any waivers they effect pursuant to Section
3.08(a) or (b) to the Special Servicer and each Rating Agency with respect to
each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20 but subject to Section 3.28, the Master Servicer may with respect
to Non-Specially Serviced Mortgage Loans, without any Directing
Certificateholder approval, Rating Agency confirmation or Special Servicer
approval (provided, the Master Servicer delivers notice thereof to the Special
Servicer and Directing Certificateholder, except to the extent that the Special
Servicer or the Directing Certificateholder, as the case may be, notifies the
Master Servicer that such party does not desire to receive copies of such
items), (i) grant waivers of non-material covenant defaults (other than
financial covenants), including late financial statements; (ii) grant releases
of non-material, non-income producing parcels of a Mortgaged Property that do
not materially affect the use or value of the Mortgaged Property or the ability
of the related Mortgagor to pay amounts due in respect of the Mortgage Loan as
and when due provided such releases are required by the related Mortgage Loan
documents; (iii) approve or consent to grants of easements or right of way for
utilities, access, parking, public improvements or another purpose or
subordinations of the lien of Mortgage Loans to easements that do not materially
affect the use or value of a Mortgaged Property or a Mortgagor's ability to make
any payments with respect to the related Mortgage Loan; (iv) grant other routine
approvals, including the granting of subordination, non-disturbance and
attornment agreements and leasing consents that affect less than the lesser of
(a) 25% of the net rentable area of the Mortgaged Property, or (b) 30,000 square
feet; (v) consent to actions related to condemnation of non-material, non-income
producing parcels of the Mortgaged Property that do not materially affect the
use or value of the Mortgaged Property or the ability of the related Mortgagor
to pay amounts due in respect of the Mortgage Loan or Companion Loan as and when
due; (vi) consent to a change in property management relating to any Mortgage
Loan or Companion Loan with respect to Mortgage Loans or Companion Loans with an
outstanding principal balance of less than $2,500,000; and (vii) approve of
annual operating budgets; provided that any such modification, waiver or
amendment (w) would not in any way affect a payment term of the Certificates,
(x) would not constitute a "significant modification" of such Mortgage Loan or
Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would
not otherwise cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust under subpart E, Part I of subchapter J of the Code for federal income tax
purposes, (y) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standards, and (z) agreeing to such modification,
waiver or amendment shall not violate the terms, provisions or limitations of
this Agreement or any Intercreditor Agreement or other Mortgage Loan Document
contemplated hereby.
(f) Notwithstanding any other provision of this Agreement, the
Master Servicer may not waive its rights or grant its consent under any "due on
sale" or "due on encumbrance" clause without the consent of the Special Servicer
and the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan or relating to any Specially Serviced Mortgage Loan
without the consent of the Directing Certificateholder. The Directing
Certificateholder shall have 10 Business Days after receipt of notice along with
the Master Servicer's or Special Servicer's recommendation and analysis with
respect to such waiver and any additional information the Directing
Certificateholder may reasonably request from the Special Servicer of a proposed
waiver or consent under any "due on sale" or "due on encumbrance" clause in
which to grant or withhold its consent (provided, that if the Special Servicer
fails to receive a response to such notice from the Directing Certificateholder
in writing within such period, then the Directing Certificateholder shall be
deemed to have consented to such proposed waiver or consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.28, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans (other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel
Portfolio Servicing Transfer Event) or Companion Loans, as come into and
continue in default as to which no satisfactory arrangements can be made for
collection of delinquent payments, and which are not released from the Trust
Fund pursuant to any other provision hereof. The foregoing is subject to the
provision that, in any case in which a Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Master Servicer or Special Servicer shall
not be required to make a Servicing Advance and expend funds toward the
restoration of such property unless the Special Servicer has determined in its
reasonable discretion that such restoration will increase the net proceeds of
liquidation of such Mortgaged Property to Certificateholders after reimbursement
to the Master Servicer for such Servicing Advance, and the Master Servicer or
Special Servicer has not determined that such Servicing Advance together with
accrued and unpaid interest thereon would constitute a Nonrecoverable Advance.
The costs and expenses incurred by the Special Servicer in any such proceedings
shall be advanced by the Master Servicer; provided that, in each case, such cost
or expense would not, if incurred, constitute a Nonrecoverable Servicing
Advance. Nothing contained in this Section 3.09 shall be construed so as to
require the Master Servicer or the Special Servicer, on behalf of the Trust, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Master Servicer or the Special Servicer in its reasonable judgment taking
into account the factors described in Section 3.18(b) and the results of any
Appraisal obtained pursuant to the following sentence, all such bids to be made
in a manner consistent with the Servicing Standards. If and when the Special
Servicer or the Master Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan or defaulted Companion Loan, whether for purposes of
bidding at foreclosure or otherwise, the Special Servicer or the Master
Servicer, as the case may be, is authorized to have an Appraisal performed with
respect to such property by an Independent MAI-designated appraiser the cost of
which shall be paid by the Master Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that the holding of such personal property by the
Trust Fund (to the extent not allocable to a Companion Loan) will not
cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier
REMIC under the REMIC Provisions or cause the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest, the Class A-2FL Regular Interest or
any Regular Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.28, neither the Special Servicer nor the Master Servicer shall, on
behalf of the Trustee, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders and/or any related Companion Holder(s), would 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 (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
Environmental Laws and regulations 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 net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable Environmental Laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Master Servicer as a Servicing Advance and the cost of any remedial, corrective
or other further action contemplated by clause (i) and/or clause (ii) of the
preceding sentence shall be paid by the Master Servicer at the direction of the
Special Servicer as a Servicing Advance, unless it is a Nonrecoverable Servicing
Advance (in which case it shall be an expense of the Trust Fund, in the case of
any Serviced Whole Loan, may be withdrawn in accordance with the related
Intercreditor Agreement by the Master Servicer from the Certificate Account,
including from the sub-account relating to the related Companion Loans (such
withdrawal to be made from amounts on deposit therein that are otherwise payable
on or allocable to the related Companion Loans)); and if any such Environmental
Assessment so warrants, the Special Servicer shall (except with respect to any
Companion Loan and any Environmental Assessment ordered after the related
Serviced Mortgage Loan has been paid in full), at the expense of the Trust Fund,
perform such additional environmental testing as it deems necessary and prudent
to determine whether the conditions described in clauses (i) and (ii) of the
preceding sentence have been satisfied. With respect to Non-Specially Serviced
Mortgage Loans, the Master Servicer and, with respect to Specially Serviced
Mortgage Loans, the Special Servicer shall review and be familiar with the terms
and conditions relating to making claims and shall monitor the dates by which
any claim or action must be taken (including delivering any notices to the
insurer and using reasonable efforts to perform any actions required under such
policy) under each environmental insurance policy in effect and obtained on
behalf of the mortgagee to receive the maximum proceeds available under such
policy for the benefit of the Certificateholders and the Trustee (as holder of
the Class A-2FL Regular Interest and the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of the
applicable Mortgage Loan Purchase Agreement for which the applicable Mortgage
Loan Seller could be required to repurchase such Defaulted Mortgage Loan
pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement, then
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund (other than proceeding to acquire title to
the Mortgaged Property) and is hereby authorized at such time as it deems
appropriate to release such Mortgaged Property from the lien of the related
Mortgage; provided that, if such Mortgage Loan has a then outstanding principal
balance of greater than $1,000,000, then prior to the release of the related
Mortgaged Property from the lien of the related Mortgage, (i) the Special
Servicer shall have notified the Rating Agencies, the Trustee, the Master
Servicer and the Directing Certificateholder in writing of its intention to so
release such Mortgaged Property and the bases for such intention, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Trustee's distributing such notice (failure
to respond by the end of such 30-day period being deemed consent), (iv) the
Special Servicer shall have received written confirmation from each Rating
Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates or
class of Companion Loan Securities and (v) if required under the related
Intercreditor Agreement, the Special Servicer shall have received the consent of
any related Companion Holder or any applicable mezzanine loan holder. To the
extent any fee charged by each Rating Agency in connection with rendering such
written confirmation is not paid by the related Mortgagor, such fee is to be an
expense of the Trust; provided that the Master Servicer and the Special
Servicer, as the case may be, shall use its reasonable efforts to collect such
fee from the Mortgagor to the extent permitted under the related Mortgage Loan
documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Directing Certificateholder,
each Rating Agency and the Master Servicer (and, if required under the related
Intercreditor Agreement, to any related Companion Holder) monthly regarding any
actions taken by the Special Servicer with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan or defaulted Companion Loan as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of both such conditions, repurchase of the related Mortgage Loan by
the applicable Mortgage Loan Seller or release of the lien of the related
Mortgage on such Mortgaged Property. The Trustee shall forward, or cause to be
forwarded all such reports to each Rating Agency and the Certificateholders upon
request.
(f) The Special Servicer shall notify the Master Servicer of any
abandoned and/or foreclosed properties which require reporting to the Internal
Revenue Service and shall provide the Master Servicer with all information
regarding forgiveness of indebtedness and required to be reported with respect
to any Mortgage Loan or Companion Loan which is abandoned or foreclosed and the
Master Servicer shall report to the Internal Revenue Service and the related
Mortgagor, in the manner required by applicable law, such information and the
Master Servicer shall report, via Form 1099C or any successor form, all
forgiveness of indebtedness to the extent such information has been provided to
the Master Servicer by the Special Servicer. Upon request, the Master Servicer
shall deliver a copy of any such report to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan (other than with respect to the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event),
defaulted Companion Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate promptly
delivered to the Trustee, the Directing Certificateholder and the Master
Servicer and in no event later than the next succeeding P&I Advance
Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan (other than the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event),
or the receipt by the Master Servicer or the Special Servicer, as the case may
be, of a notification that payment in full shall be escrowed in a manner
customary for such purposes, the Master Servicer or Special Servicer, as the
case may be, will immediately notify the Trustee and request delivery of the
related Mortgage File. Any such notice and request shall be in the form of a
Request for Release signed by a Servicing Officer and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the applicable Certificate
Account pursuant to Section 3.04(a) or remitted to the Master Servicer to enable
such deposit, have been or will be so deposited. Within seven Business Days (or
within such shorter period as release can reasonably be accomplished if the
Master Servicer or the Special Servicer notifies the Trustee of an exigency) of
receipt of such notice and request, the Trustee shall release, or cause any
related Custodian to release, the related Mortgage File to the Master Servicer
or Special Servicer, as the case may be; provided, however, in the case of the
payment in full of a Serviced Whole Loan, the Mortgage Loan File with respect to
the related Serviced Whole Loan shall not be released by the Trustee (and the
Master Servicer or Special Servicer shall not request such release) unless such
Mortgage Loan that is paid in full is the sole remaining portion of the related
Serviced Whole Loan. If the Mortgage has been recorded in the name of MERS or
its designee, the Master Servicer shall take all necessary and reasonable
actions to reflect the release of the Mortgage on the records of MERS. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account. (b) From time to
time as is appropriate for servicing or foreclosure of any Mortgage Loan (other
than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event) (and any related Companion Loan), the Master Servicer
or the Special Servicer shall deliver to the Trustee a Request for Release
signed by a Servicing Officer. Upon receipt of the foregoing, the Trustee shall
deliver or cause the related Custodian to deliver, the Mortgage File or any
document therein to the Master Servicer or the Special Servicer (or a designee),
as the case may be. Upon return of such Mortgage File or such document to the
Trustee or the related Custodian, or the delivery to the Trustee of a
certificate of a Servicing Officer of the Master Servicer or the Special
Servicer, as the case may be, stating that such Mortgage Loan was liquidated and
that all amounts received or to be received in connection with such liquidation
which are required to be deposited into the applicable Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Trustee to the Master Servicer or the Special Servicer
(or a designee), as the case may be, with the original being released upon
termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
(d) After the JQH Hotel Portfolio Servicing Transfer Event, if, from
time to time, pursuant to the terms of the JQH Hotel Portfolio Intercreditor
Agreement and the BACM 2007-3 Pooling Agreement, and as appropriate for
enforcing the terms of the JQH Hotel Portfolio Mortgage Loan, the BACM 2007-3
Master Servicer requests delivery to it of the original Mortgage Note for the
JQH Hotel Portfolio Mortgage Loan, then the Trustee shall release or cause the
release of such original Mortgage Note to the BACM 2007-3 Master Servicer or its
designee.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, the Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan (to the
extent permitted in the related Intercreditor Agreement) and REO Loan (including
Specially Serviced Mortgage Loans) that it is responsible for servicing
hereunder. As to each Mortgage Loan, Companion Loan and REO Loan, the Servicing
Fee shall accrue from time to time at the Servicing Fee Rate and shall be
computed on the basis of the Stated Principal Balance of such Mortgage Loan or
Companion Loan or REO Loan, as the case may be, and in the same manner as
interest is calculated on such Mortgage Loan, Companion Loan or REO Loan, as the
case may be, and, in connection with any partial month interest payment, for the
same period respecting which any related interest payment due on such Mortgage
Loan, Companion Loan or REO Loan or deemed to be due on such REO Loan is
computed. The Servicing Fee with respect to any Mortgage Loan, Companion Loan or
REO Loan shall cease to accrue if a Liquidation Event occurs in respect thereof,
except that if such asset is part of a Serviced Whole Loan and such Serviced
Whole Loan continues to be serviced and administered under this Agreement
notwithstanding such Liquidation Event, then the applicable Servicing Fee shall
continue to accrue and be payable by the holder thereof as if such Liquidation
Event did not occur. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion
Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise
provided by Section 3.05(a). The Master Servicer shall be entitled to recover
unpaid Servicing Fees in respect of any Mortgage Loan, Companion Loan or REO
Loan out of that portion of related payments, Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan)
allocable as recoveries of interest, to the extent permitted by Section 3.05(a).
Except as set forth in the third paragraph of this Section 3.11(a), Sections
6.02, 6.04 and 7.01(c), the right to receive the Servicing Fee may not be
transferred in whole or in part. With respect to the JQH Hotel Portfolio Pari
Passu Companion Loan, the Servicing Fee shall cease to accrue upon the
occurrence of the JQH Hotel Portfolio Servicing Transfer Event.
The Master Servicer shall be entitled to retain, and shall not be
required to deposit in its Certificate Account pursuant to Section 3.04(a),
additional servicing compensation (other than with respect to the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event)
in the form of (i) 100% of modification, waiver and consent fees on transactions
made pursuant to Section 3.08(e) with respect to the Mortgage Loans that the
Master Servicer is responsible for servicing; provided the consent of the
Special Servicer is not required to take such action, (ii) 100% of all
defeasance fees and 50% of all application fees received on Non-Specially
Serviced Mortgage Loans that it is responsible for servicing and (iii) 50% of
all assumption, extension, modification, earnout, waiver and consent fees on
transactions made pursuant to Section 3.08(a), Section 3.08(b) and Section 3.20
on the Non-Specially Serviced Mortgage Loans that it is responsible for
servicing, to the extent that such fees are paid by the Mortgagor and for which
the Special Servicer's consent or approval is required on the Non-Specially
Serviced Mortgage Loans and only to the extent that all amounts then due and
payable with respect to the related Mortgage Loan have been paid. In addition,
the Master Servicer shall be entitled to retain as additional servicing
compensation (other than with respect to the JQH Hotel Portfolio Mortgage Loan
after the JQH Hotel Portfolio Servicing Transfer Event) any charges for
processing Mortgagor requests, beneficiary statements or demands, reasonable and
customary consent fees, fees in connection with defeasance, if any, and other
customary charges, and amounts collected for checks returned for insufficient
funds, in each case only to the extent actually paid by the related Mortgagor
and shall not be required to deposit such amounts in its Certificate Account or
the Companion Distribution Account pursuant to Section 3.04(a); provided, the
Master Servicer shall not be entitled to any charge or fees for defeasances,
releases or assumptions received on the JQH Hotel Portfolio Mortgage Loan after
the JQH Hotel Portfolio Servicing Transfer Event. Subject to Section 3.11(d),
the Master Servicer shall also be entitled to additional servicing compensation
in the form of: (i) Penalty Charges to the extent provided in Section 3.11(d),
(ii) interest or other income earned on deposits relating to the Trust Fund in
its Certificate Account or the Companion Distribution Account in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to such account for the period from the prior P&I Advance Date to
the P&I Advance Date related to such Distribution Date), (iii) interest or other
income earned on deposits in the Servicing Account which are not required by
applicable law or the related Mortgage Loan to be paid to the Mortgagor and (iv)
the difference, if positive, between Prepayment Interest Excess and Prepayment
Shortfalls collected on the Mortgage Loans during the related Due Period to the
extent not required to be paid as Compensating Interest Payments. The Master
Servicer shall be required to pay out of its own funds all expenses incurred by
it in connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of its Sub-Servicers and
the premiums for any blanket Insurance Policy insuring against hazard losses
pursuant to Section 3.07), if and to the extent such expenses are not payable
directly out of its Certificate Account and the Master Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan (other than the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event
and any successor REO Loan). As to each Specially Serviced Mortgage Loan and REO
Loan (other than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel
Portfolio Servicing Transfer Event and any successor REO Loan), the Special
Servicing Fee shall accrue from time to time at the Special Servicing Fee Rate
and shall be computed on the basis of the Stated Principal Balance of such
Specially Serviced Mortgage Loan or REO Loan, as the case may be, and in the
same manner as interest is calculated on the Specially Serviced Mortgage Loans
or REO Loans, as the case may be, and, in connection with any partial month
interest payment, for the same period respecting which any related interest
payment due on such Specially Serviced Mortgage Loan or deemed to be due on such
REO Loan is computed. The Special Servicing Fee with respect to any Specially
Serviced Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof. The Special Servicing Fee shall be payable monthly,
on a loan-by-loan basis, in accordance with the provisions of Section 3.05(a).
The right to receive the Special Servicing Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under this Agreement. The Special
Servicer shall not be entitled to any Special Servicing Fees with respect to the
JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing
Transfer Event.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans (other than the JQH Hotel Portfolio Mortgage Loan after
the JQH Hotel Portfolio Servicing Transfer Event and any successor REO Loan) to
the extent such fees are paid by the Mortgagor, (ii) 50% of all application fees
received on Non-Specially Serviced Mortgage Loans and (iii) 50% of all
assumption, extension, modification, earnout, waiver and consent fees on
transactions made pursuant to Section 3.08(a) and 3.08(b) or 3.20 received with
respect to all Non-Specially Serviced Mortgage Loans and for which the Special
Servicer's consent or approval is required, shall be promptly paid to the
Special Servicer by the Master Servicer to the extent such fees are paid by the
Mortgagor and shall not be required to be deposited in the applicable
Certificate Account pursuant to Section 3.04(a). The Special Servicer shall also
be entitled to additional servicing compensation in the form of a Workout Fee
with respect to each Corrected Mortgage Loan at the Workout Fee Rate on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout
Fee with respect to any Corrected Mortgage Loan will cease to be payable if such
loan again becomes a Specially Serviced Mortgage Loan; provided that a new
Workout Fee will become payable if and when such Specially Serviced Mortgage
Loan again becomes a Corrected Mortgage Loan. The Special Servicer shall not be
entitled to any Workout Fee with respect to the JQH Hotel Portfolio Mortgage
Loan after the JQH Hotel Portfolio Servicing Transfer Event. If the Special
Servicer is terminated (other than for cause) or resigns, it shall retain the
right to receive any and all Workout Fees payable in respect of Mortgage Loans
or Companion Loans that became Corrected Mortgage Loans prior to the time of
that termination or resignation except the Workout Fees will no longer be
payable if the Mortgage Loan subsequently becomes a Specially Serviced Mortgage
Loan. If the Special Servicer resigns or is terminated (other than for cause),
it will receive any Workout Fees payable on Specially Serviced Mortgage Loans
for which the resigning or terminated Special Servicer had cured the event of
default through a modification, restructuring or workout negotiated by the
Special Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The successor Special Servicer will not be entitled to any portion of
such Workout Fees. The Special Servicer will not be entitled to receive any
Workout Fees after termination for cause. A Liquidation Fee will be payable with
respect to each Specially Serviced Mortgage Loan (other than the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event)
or REO Property as to which the Special Servicer receives any Liquidation
Proceeds or Insurance and Condemnation Proceeds subject to the exceptions set
forth in the definition of Liquidation Fee (such Liquidation Fee to be paid out
of such Liquidation Proceeds, Insurance and Condemnation Proceeds).
Notwithstanding anything to the contrary described above, no Liquidation Fee
will be payable based on, or out of, Liquidation Proceeds as set forth in the
proviso to the definition of "Liquidation Fee." If, however, Liquidation
Proceeds or Insurance and Condemnation Proceeds are received with respect to any
Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds and Insurance and Condemnation Proceeds that
constitute principal and/or interest on such Mortgage Loan. Notwithstanding
anything herein to the contrary, the Special Servicer shall only be entitled to
receive a Liquidation Fee or a Workout Fee, but not both, with respect to
proceeds on any Mortgage Loan. Notwithstanding the foregoing, with respect to
any subordinate Companion Loan, the Liquidation Fee, Workout Fee and Special
Servicing Fees, if any, will be computed only if permitted, and to the extent
provided, in the related Intercreditor Agreement. Subject to Section 3.11(d),
the Special Servicer will also be entitled to additional fees in the form of
Penalty Charges to the extent provided in subsection (d). The Special Servicer
shall be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts, other than management fees in respect of REO
Properties, due and owing to any of its Sub-Servicers and the premiums for any
blanket Insurance Policy obtained by it insuring against hazard losses pursuant
to Section 3.07), if and to the extent such expenses are not expressly payable
directly out of the applicable Certificate Account or the REO Account, and the
Special Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied (in such order) to reimburse
(i) the Master Servicer or the Trustee for interest on Advances on such Mortgage
Loan (and, after the JQH Hotel Portfolio Servicing Transfer Event, in connection
with the JQH Hotel Portfolio Mortgage Loan, the BACM 2007-3 Master Servicer,
BACM 2007-3 Special Servicer or BACM 2007-3 Trustee for interest on the
servicing advances made by any such party with respect to the JQH Hotel
Portfolio Whole Loan pursuant to the BACM 2007-3 Pooling Agreement, to the
extent so provided in the JQH Hotel Portfolio Intercreditor Agreement) due on
such Distribution Date, (ii) the Trust Fund for all interest on Advances
previously paid to the Master Servicer or the Trustee pursuant to Section
3.05(a)(vi) hereof (and, after the JQH Hotel Portfolio Servicing Transfer Event,
in connection with the JQH Hotel Portfolio Mortgage Loan, the BACM 2007-3 Trust
for all interest on servicing advances reimbursed by the BACM 2007-3 Trust to
any party under the BACM 2007-3 Pooling Agreement, which resulted in an
additional trust fund expense for the BACM 2007-3 Trust, to the extent so
provided in the JQH Hotel Portfolio Intercreditor Agreement with respect to the
JQH Hotel Portfolio Mortgage Loan) and (iii) the Trust Fund for costs of all
additional Trust Fund expenses (including Special Servicing Fees, Workout Fees
and Liquidation Fees), including without limitation, inspections by the Special
Servicer and all unpaid Advances incurred since the Closing Date with respect to
such Mortgage Loan; Penalty Charges (other than with respect to the JQH Hotel
Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event,
which shall be payable as additional servicing compensation under the BACM
2007-3 Pooling Agreement) remaining thereafter shall be distributed to the
Master Servicer, if and to the extent collected while the Mortgage Loan was a
Non-Specially Serviced Mortgage Loan and to the Special Servicer if and to the
extent actually collected on such Mortgage Loan during the period such Mortgage
Loan was a Specially Serviced Mortgage Loan. Notwithstanding the foregoing,
Penalty Charges with respect to any subordinate Companion Loan will be allocated
pursuant to the applicable Intercreditor Agreement after payment of all related
Advances and interest thereon.
Notwithstanding the foregoing, but subject to the terms of any
related Intercreditor Agreement, with respect to any Serviced Whole Loan
Remittance Date, any and all Penalty Charges that are actually collected on the
related Serviced Whole Loan since the prior related Serviced Whole Loan
Remittance Date, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Penalty Charges:
first, toward the payment of or reimbursement for accrued and unpaid
interest on (i) any presently outstanding Servicing Advances made with respect
to the related Serviced Whole Loan, and (ii) any previously paid Servicing
Advances made with respect to the related Serviced Whole Loan to the extent that
the advance interest has been paid from a source other than Penalty Charges;
second, toward the payment of or reimbursement for accrued and
unpaid interest on (i) any presently outstanding principal and interest advances
(including P&I Advances hereunder and any advances comparable to P&I Advances
made under a securitization agreement governing any Serviced Securitized
Companion Loan) made with respect to the related Serviced Mortgage Loan and/or
any related Companion Loan, and (ii) any previously paid principal and interest
advances (including P&I Advances hereunder and any advances comparable to P&I
Advances made under an Other Pooling and Servicing Agreement governing any
Serviced Securitized Companion Loan) made with respect to the related Serviced
Mortgage Loan and/or any such related Serviced Securitized Companion Loan, to
the extent that the advance interest has been paid from a source other than
Penalty Charges;
third, toward the payment of or reimbursement for (i) any presently
outstanding expenses payable under the related Intercreditor Agreement, other
than Special Servicing Fees, and (ii) any previously paid expenses payable under
the related Intercreditor Agreement, other than Special Servicing Fees, to the
extent that the expense has been paid from a source other than Penalty Charges;
and
fourth, to pay any remaining portion of such Penalty Charges with
respect to the related Serviced Whole Loan as additional servicing compensation
to the Master Servicer, to the extent received, if and to the extent accrued
while the related Serviced Whole Loan was a Non-Specially Serviced Mortgage
Loan, and to the Special Servicer, to the extent received, if and to the extent
accrued while the related Serviced Whole Loan was a Specially Serviced Mortgage
Loan.
As among the various holders of the related Mortgage Loan, the
related Serviced Whole Loans and Serviced AB Loans, the payments and
reimbursements under each relevant clause shall be made first to the Mortgage
Loan and related pari passu Companion Loan(s) pro rata and pari passu among
those holders according to the respective amounts described in that clause that
are attributable to each of them and then to any related subordinate Companion
Loan.
Section 3.12 Inspections; Collection of Financial Statements. (a)
The Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
(other than the JQH Hotel Portfolio Mortgaged Property after the JQH Hotel
Portfolio Servicing Transfer Event) securing a Mortgage Loan that it is
responsible for servicing hereunder with a stated Principal Balance of (i)
$2,000,000 or more at least once every 12 months and (ii) less than $2,000,000
at least once every 24 months, in each case commencing in the calendar year 2008
(and each Mortgaged Property shall be inspected on or prior to September 2009);
provided, however, if a physical inspection has been performed by the Special
Servicer in the previous 12 months and the Master Servicer has no knowledge of a
material change in the Mortgaged Property since such physical inspection, the
Master Servicer will not be required to perform or cause to be performed, such
physical inspection; provided, further, if any scheduled payment becomes more
than 60 days delinquent on the related Mortgage Loan, the Special Servicer shall
inspect or cause to be inspected the related Mortgaged Property as soon as
practicable after such Mortgage Loan becomes a Specially Serviced Mortgage Loan
and annually thereafter for so long as such Mortgage Loan remains a Specially
Serviced Mortgage Loan. The cost of such inspection by the Special Servicer
shall be an expense of the Trust Fund, and to the extent not paid by the related
Mortgagor reimbursed first from Penalty Charges (but with respect to any
Serviced Whole Loan, only from amounts available for such purpose under the
related Intercreditor Agreement) actually received from the related Mortgagor
and then from the applicable Certificate Account pursuant to Section
3.05(a)(ii). The Special Servicer or the Master Servicer, as the case may be,
shall prepare or cause to be prepared a written report of each such inspection
detailing the condition of the Mortgaged Property revealed by the inspection and
specifying the existence of (i) any vacancy in the Mortgaged Property that the
preparer of such report deems material, (ii) any sale, transfer or abandonment
of the Mortgaged Property of which it has knowledge, (iii) any adverse change in
the condition of the Mortgaged Property that the preparer of such report deems
material and is evident from the inspection, (iv) any visible material waste
committed on the Mortgaged Property and (v) photographs of each inspected
Mortgaged Property. The Special Servicer and the Master Servicer shall deliver a
copy of each such report prepared by the Special Servicer and the Master
Servicer, respectively, to the other, to the Directing Certificateholder and,
upon request, to the Trustee and the Rating Agencies within five (5) Business
Days after request (or if such request is received before such report is
completed, within five (5) Business Days after completion of such report). The
Trustee shall deliver a copy of each such report to the Controlling Class
Certificateholder (and with respect to a Serviced Whole Loan, the related
Companion Holder) upon request and to each Holder of a Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class P, Class Q, Class T and Class NR
Certificate, upon request (which such request may state that such items be
delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loans, shall make reasonable efforts to collect promptly from
each Mortgagor annual operating statements and rent rolls of the related
Mortgaged Property, financial statements of such Mortgagor and any other reports
required to be delivered under the terms of the Mortgage Loans (and each
Companion Loan), if delivery of such items is required pursuant to the terms of
the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loan shall make reasonable efforts to collect promptly from
each related Mortgagor quarterly operating statements, budgets and rent rolls of
the related Mortgaged Property, and the quarterly financial statements of such
Mortgagor, whether or not delivery of such items is required pursuant to the
terms of the related Mortgage. The Master Servicer shall not be required to
request such statements more than once if the related Mortgagor is not required
to deliver such statements pursuant to the terms of the Mortgage Loan 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 all such items to the Master
Servicer within five (5) days of receipt and the Master Servicer and the Special
Servicer each shall deliver copies of all the foregoing items so collected
thereby to the Trustee, the Directing Certificateholder and, upon request, to
the Depositor and each other (and, if required under any related Intercreditor
Agreement, to any related Companion Holder), in each case within 60 days of its
receipt thereof, but in no event, in the case of annual statements, later than
June 30 of each year commencing June 30, 2008. The Trustee shall, upon request,
deliver copies (in hard copy, electronic format or make available on its
Internet website) of the foregoing items to the Underwriters, the Trustee, the
Rating Agencies, the Controlling Class Certificateholders, the Mortgage Loan
Sellers or, to the extent the Certificate Registrar has confirmed the Ownership
Interest in Certificates held thereby, any Certificate Owner, a copy (or image
in suitable electronic media) of each such report prepared by the Master
Servicer or the Special Servicer.
Within 45 days after receipt by the Master Servicer, with respect to
Mortgage Loans it is responsible for servicing hereunder, or the Special
Servicer with respect to REO Property of any annual operating statements or rent
rolls with respect to any Mortgaged Property or REO Property, or if such date
would be after June 30 of any year, then within 30 days after receipt, the
Master Servicer shall, based upon such operating statements or rent rolls
received, prepare (or, if previously prepared, update) the analysis of
operations and the CMSA NOI Adjustment Worksheet and the CMSA Operating
Statement Analysis Report. In connection with preparing the CMSA NOI Adjustment
Worksheets and the CMSA Operating Statement Analysis Reports, the Master
Servicer shall process (a) interim financial statements beginning with interim
financial statements for the fiscal quarter ending September 30, 2007, and (b)
annual financial statements beginning with annual financial statements for the
2007 fiscal year. Upon the occurrence and continuation of a Servicing Transfer
Event, the Master Servicer shall provide the Special Servicer with all prior
CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment Worksheets for
the related Mortgage Loan (including underwritten figures), and the Special
Servicer's obligations hereunder shall be subject to its having received all
such reports. The Master Servicer and Special Servicer shall forward to the
other and the Directing Certificateholder electronically monthly all operating
statements and rent rolls received from any Mortgagor from the prior month. All
CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment Worksheets
shall be maintained by the Master Servicer with respect to each Mortgaged
Property (other than the JQH Hotel Portfolio Mortgaged Property after the JQH
Hotel Portfolio Servicing Transfer Event) and REO Property, and the Master
Servicer shall forward copies (in hard copy, electronic format or make available
on its Internet website) thereof and the related operating statements or rent
rolls (in each case, promptly following the initial preparation and each
material revision thereof) to the Trustee (in electronic format only), the
Directing Certificateholder (and with respect to a Serviced Whole Loan, to the
related Companion Holder) and the Special Servicer. The Trustee shall, upon
request and to the extent such items have been delivered to the Trustee by the
Master Servicer, deliver to the Underwriters, the Rating Agencies, the Mortgage
Loan Sellers, any Certificateholder or, to the extent the Certificate Registrar
has confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of such CMSA Operating Statement Analysis Report (or
update thereof) and CMSA NOI Adjustment Worksheet (or update thereof), upon
written request, and the related operating statement or rent rolls. The Master
Servicer shall maintain a CMSA Operating Statement Analysis Report and a CMSA
NOI Adjustment Worksheet with respect to each Mortgaged Property and REO
Property.
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicer and the Directing Certificateholder the CMSA
Special Servicer Loan File with respect to the Specially Serviced Mortgage Loans
and any REO Properties (other than the JQH Hotel Portfolio Mortgaged Property
after the JQH Hotel Portfolio Servicing Transfer Event), providing the
information required of the Special Servicer in an electronic format, reasonably
acceptable to the Master Servicer as of the Business Day preceding such
Determination Date, which CMSA Special Servicer Loan File shall include data, to
enable the Master Servicer to produce the following CMSA Supplemental Reports:
(i) a CMSA Delinquent Loan Status Report, (ii) a CMSA REO Status Report, (iii) a
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, (iv) a
CMSA Comparative Financial Status Report and (v) a CMSA NOI Adjustment Worksheet
and a CMSA Operating Statement Analysis Report.
(e) Not later than 4:00 p.m. (New York City time) on each P&I
Advance Date, beginning in August 2007, the Master Servicer shall prepare (if
and to the extent necessary) and deliver or cause to be delivered in electronic
format to the Trustee the following reports and data files: (i) to the extent
the Master Servicer has received the CMSA Special Servicer Loan File at the time
required, the most recent CMSA Delinquent Loan Status Report, CMSA Historical
Loan Modification and Corrected Mortgage Loan Report and CMSA REO Status Report,
(ii) the most recent CMSA Property File, and CMSA Comparative Financial Status
Report (in each case incorporating, to the extent the Master Servicer has
received the CMSA Special Servicer Loan File, the data required to be included
in the CMSA Special Servicer Loan File pursuant to Section 3.12(d) by the
Special Servicer and Master Servicer), (iii) a CMSA Servicer Watch List with
information that is current as of such Determination Date, (iv) CMSA Financial
File, (v) CMSA Loan Level Reserve LOC Report, (vi) the Realized Loss Report and
(vii) the CMSA Advance Recovery Report. Not later than 2:00 p.m. (New York City
time) two (2) Business Days prior to the Distribution Date, the Master Servicer
shall deliver or cause to be delivered to the Trustee via electronic format the
CMSA Loan Setup File (with respect to the first Distribution Date) and the CMSA
Loan Periodic Update File. In no event shall any report described in this
subsection be required to reflect information that has not been collected by or
delivered to the Master Servicer, or any payments or collections not received by
the Master Servicer, as of the close of business on the Determination Date.
(f) The Special Servicer shall deliver to the Master Servicer the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and the Master Servicer shall deliver to the Trustee the reports and
data files set forth in Section 3.12(e). The Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The
Trustee may, absent manifest error, conclusively rely on the reports and/or data
to be provided by the Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by the Master Servicer to the Trustee
pursuant to Section 3.12(e), to the extent that such information or reports are,
in turn, based on information or reports to be provided by the Special Servicer
pursuant to Section 3.12(c) or Section 3.12(d) and to the extent that such
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.12(c) or Section 3.12(d), the Master Servicer shall have no obligation
to provide such information or reports to the Trustee 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 required by Section 3.12(e) caused by the Special Servicer's failure to
timely provide any information or report required under Section 3.12(c) or
Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer, as the case may be, would violate any applicable law or any
provision of a Mortgage Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law and
the Servicing Standards. 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).
(h) Unless otherwise specifically stated herein, if the Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, the Master Servicer or the
Special Servicer, as the case may be, may satisfy such obligation by (x)
physically delivering a paper copy of such statement, report or information, (y)
delivering such statement, report or information in a commonly used electronic
format or (z) except with respect to information to be provided to the Trustee
and the Directing Certificateholder, making such statement, report or
information available on the Master Servicer's or the Special Servicer's
Internet website, unless this Agreement expressly specifies a particular method
of delivery.
Notwithstanding the foregoing, the Master Servicer and the Special
Servicer shall deliver any statements, reports or other information to the
Trustee in an electronic format mutually agreeable to the Trustee and the Master
Servicer, or the Special Servicer as the case may be. The Master Servicer or the
Special Servicer may physically deliver a paper copy of any such statement,
report or information as a temporary measure due to system problems.
Section 3.13 [RESERVED]
Section 3.14 [RESERVED]
Section 3.15 Access to Certain Information. The Master Servicer and
the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Depositor, each
Mortgage Loan Seller, each Rating Agency, the Directing Certificateholder to the
Master Servicer, or to the Special Servicer, as applicable, and to the OTS, the
FDIC, the Federal Reserve Board and the supervisory agents and examiners of such
boards and such corporations, and any other federal or state banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, and to each Holder of a Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class T or Class NR Certificate,
and to each Companion Holder (solely with respect to the related Serviced Whole
Loan) access to any documentation or information regarding the Mortgage Loans
and related Companion Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law. At the election of the Master
Servicer or the Special Servicer, such access may be afforded to such Person
identified above by the delivery of copies of information as requested by such
Person and the Master Servicer or the Special Servicer shall be permitted to
require payment (other than from the Directing Certificateholder, of a sum
sufficient to cover the reasonable out-of-pocket costs incurred by it in making
such copies. Such access shall (except as described in the preceding sentence)
be afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it; provided, however,
Certificateholders and Certificate Owners shall be required to pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information. The failure of the Master Servicer
or the Special Servicer to provide access as provided in this Section 3.15 as a
result of a confidentiality obligation shall not constitute a breach of this
Section 3.15; provided that nothing in this paragraph shall provide a basis for
not providing to the Directing Certificateholder any information specifically
required to be delivered to it under the terms of this Agreement. The Master
Servicer and the Special Servicer may each deny any of the foregoing persons
access to confidential information or any intellectual property which the Master
Servicer or the Special Servicer is restricted by license or contract from
disclosing. In connection with providing access to information pursuant to this
Section 3.15 to parties other than the Trustee, the Master Servicer and the
Special Servicer may each (i) affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto); (ii) affix to any information
provided by it a reasonable statement regarding securities law restrictions on
such information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Mortgage Loan if the
disclosure of such items is prohibited by applicable law or the provisions of
any related Mortgage Loan documents or would constitute a waiver of the
attorney-client privilege. Notwithstanding any provision of this Agreement to
the contrary, the failure of the Master Servicer or the Special Servicer to
disclose any information otherwise required to be disclosed by it pursuant to
this Agreement shall not constitute a breach of this Agreement to the extent
that the Master Servicer or the Special Servicer, as the case may be,
determines, in its reasonable good faith judgment consistent with the applicable
Servicing Standards, that such disclosure would violate applicable law or any
provision of a Mortgage Loan document or Companion Loan document prohibiting
disclosure of information with respect to the Mortgage Loans or Companion Loans
or the Mortgaged Properties, constitute a waiver of the attorney-client
privilege on behalf of the Trust or the Trust Fund or otherwise materially harm
the Trust or the Trust Fund.
Section 3.16 Title to REO Property; REO Account. (a) If title to any
REO Property is acquired, the deed or certificate of sale shall be issued to the
Trustee or a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. REO Property with respect to the
JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio Servicing
Transfer Event is excluded for all purposes of this Section 3.16; provided that
the Trustee shall cooperate with the BACM 2007-3 Special Servicer in obtaining
an REO Extension (as defined below) with respect to the JQH Hotel Portfolio
Mortgage Loan after the JQH Hotel Portfolio Servicing Transfer Event. The
Special Servicer, on behalf of the Trust Fund and, if applicable, the Companion
Holders, shall sell any REO Property prior to the close of the third calendar
year following the year in which the Trust Fund acquires ownership of such REO
Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) applies for an extension of time no later than 60 days prior to the close of
the third calendar year following the year in which it acquires ownership (or
the period provided in the then applicable REMIC Provisions) and such extension
is granted or is not denied (the period provided in the applicable Treasury
Regulations, an "REO Extension") by the Internal Revenue Service to sell such
REO Property or (ii) obtains for the Trustee and the Master Servicer an Opinion
of Counsel, addressed to the Trustee and the Master Servicer, to the effect that
the holding by the Trust Fund of such REO Property subsequent to the close of
the third calendar year following the year in which such acquisition occurred
will not cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier
REMIC or cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC at any time that any Uncertificated Lower-Tier Interest or
Certificate is outstanding. If the Special Servicer applies for the REO
Extension contemplated by clause (i) of the immediately preceding sentence and
such REO Extension is granted or is not denied, or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such longer period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its being
granted the REO Extension contemplated by clause (i) of the second preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the second preceding sentence, shall be an expense of the Trust Fund payable out
of the applicable Certificate Account pursuant to Section 3.05(a). In the case
of the Trust Fund's beneficial interest in any REO Property acquired by the BACM
2007-3 Trustee under the BACM 2007-3 Pooling Agreement after the JQH Hotel
Portfolio Servicing Transfer Event, the Special Servicer shall coordinate with
the BACM 2007-3 Special Servicer with respect to any REO Extension on behalf of
the Trust Fund.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Class A-2FL Regular Interest and the
Uncertificated Lower-Tier Interests), for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within one Business Day after receipt, all REO Revenues, Insurance
and Condemnation Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the Master Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date (or with respect to any Companion Loan related to a Serviced
Whole Loan, on the Business Day prior to each related Serviced Whole Loan
Remittance Date), the Special Servicer shall withdraw from the REO Account and
remit to the Master Servicer, which shall deposit into its Certificate Account
(or such subaccount of the applicable Certificate Account for each Companion
Loan, as applicable), the aggregate of all amounts received in respect of each
REO Property during the most recently ended Due Period, net of (i) any
withdrawals made out of such amounts pursuant to the preceding sentence and (ii)
Net Investment Earnings on amounts on deposit in the REO Account; provided,
however, the Special Servicer may retain in such REO Account, in accordance with
the Servicing Standards, such portion of such balance as may be necessary to
maintain a reasonable reserve for repairs, replacements, leasing, management and
tenant improvements and other related expenses for the related REO Property. In
addition, on or prior to each Determination Date (or with respect to any
Serviced Securitized Companion Loan, on the Business Day prior to each related
Serviced Whole Loan Remittance Date), the Special Servicer shall provide the
Master Servicer with a written accounting of amounts remitted to the Master
Servicer for deposit in its Certificate Account, as applicable, on such date.
The Master Servicer shall apply all such amounts as instructed by the Special
Servicer on the Determination Date (or with respect to any Companion Loan
related to a Serviced Whole Loan, on the Business Day prior to on each related
Serviced Whole Loan Remittance Date) for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (a) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Class A-2FL Regular Interest and the Uncertificated Lower-Tier Interests) solely
for the purpose of its timely disposition and sale in a manner that does not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust
Fund or any holder of a Serviced Securitized Companion Loan of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders (and, in the case of each Serviced Whole Loan, the related
Companion Holder(s)) and the Trustee (as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests) all as a collective whole
(as determined by the Special Servicer in its reasonable judgment in accordance
with the Servicing Standards and any related Intercreditor Agreements). REO
Property with respect to the JQH Hotel Portfolio Mortgage Loan after the JQH
Hotel Portfolio Servicing Transfer Event is excluded for all purposes of this
Section 3.17. Subject to this Section 3.17, the Special Servicer may allow the
Trust Fund or any commercial mortgage securitization that holds a Serviced
Securitized Companion Loan to earn "net income from foreclosure property" within
the meaning of Section 860G(d) of the Code if it determines that earning such
income is in the best interests of Certificateholders and, if applicable, any
related Companion Holder(s) on a net after-tax basis as compared with net
leasing such REO Property or operating such REO Property on a different basis.
In connection therewith, the Special Servicer shall deposit or cause to be
deposited on a daily basis (and in no event later than one Business Day
following receipt of such funds) in the applicable REO Account all revenues
received by it with respect to each REO Property and the related REO Loan, and
shall withdraw from the REO Account, to the extent of amounts on deposit therein
with respect to such REO Property, funds necessary for the proper operation,
management, leasing and maintenance of such REO Property, including, without
limitation:
(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, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses
(i)-(iv) above with respect to such REO Property, the Master Servicer (subject
to receiving notice from the Special Servicer in accordance with the procedures
set forth elsewhere in this Agreement) shall advance from its own funds such
amount as is necessary for such purposes unless (as evidenced by an Officer's
Certificate delivered to the Trustee, the Depositor and the Directing
Certificateholder) such advances would, if made, constitute Nonrecoverable
Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held for the benefit of the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof; provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non-customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property in accordance with Sections 3.17(a) and
3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Servicing Standards; provided, however, such determination shall be made without
taking into account any effect the restrictions on the sale of such Mortgage
Loan contained herein may have on the value of such Defaulted Mortgage Loan;
provided, further, if the Special Servicer is then in the process of obtaining
an Appraisal with respect to the related Mortgaged Property, the Special
Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer may, from time to time, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with a review of such
circumstances and new information in accordance with the Servicing Standards,
conducted not less often than every 90 days. The Special Servicer shall notify
the Trustee, the Master Servicer and the Certificateholder that owns the largest
aggregate Certificate Balance of the Controlling Class (the "Controlling Class
Option Holder"), promptly upon its making a fair value determination and any
subsequent adjustment thereto. The Special Servicer shall also deliver to the
Master Servicer, the Rating Agencies and the Controlling Class Option Holder
and, if applicable, the related Companion Holder (to the extent such parties
have not already received), the most recent Appraisal of the related Mortgaged
Property then in the Special Servicer's possession, together with such other
third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). If the Special Servicer will not
be determining whether the Option Price represents fair value of the Defaulted
Mortgage Loan, pursuant to the penultimate paragraph of Section 3.18(a)(iv), the
Special Servicer shall also deliver the Determination Information to the
Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d) and (e) of
this Section 3.18, at the time a Mortgage Loan becomes a Defaulted
Mortgage Loan, the Special Servicer and Controlling Class Option Holder
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the Master Servicer has not been reimbursed, together with
all accrued and unpaid interest thereon at the Reimbursement Rate to the
extent not included in (1) above, and (4) all accrued Special Servicing
Fees and additional Trust Fund expenses allocable to such Defaulted
Mortgage Loan whether recovered or unrecovered from the related Mortgagor
or (B) if the Special Servicer has determined the fair value of such
Defaulted Mortgage Loan pursuant to clause (i) above, an amount at least
equal to such fair value. Notwithstanding the foregoing, for a period of
sixty (60) days after it receives notice of the Special Servicer's fair
value determination (the "Controlling Class Certificateholder's Option
Period"), only the Purchase Option held by the Controlling Class Option
Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee and
the Master Servicer of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and
appropriate contact person(s) and shall be acknowledged in writing by the
transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, if such Mortgage Loan subsequently becomes a Defaulted
Mortgage Loan, the related Purchase Option shall again be exercisable, (B)
upon the acquisition, by or on behalf of the Trust Fund, of title to the
related Mortgaged Property through foreclosure or deed in lieu of
foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout or
(D) subject to the Master Servicer's determination set forth in clause
(iv) below, upon another Option Holder's exercise of its Purchase Option
with respect to the related Mortgage Loan becoming effective pursuant to
clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicer and the Trustee written notice thereof (the "Purchase
Option Notice"), in the form of Exhibit J, which notice shall identify the
Person that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at
least equal to the Option Price. The Purchase Option Notice shall be
delivered in the manner specified in Section 11.05. Immediately upon
receipt of such Purchase Option Notice, the Special Servicer shall notify
the remaining Option Holders that a Purchase Option has been exercised.
Within ten (10) days thereafter, each remaining Option Holder may submit
to the Special Servicer a Purchase Option Notice for the related Defaulted
Mortgage Loan. Upon the expiration of such ten (10) day period, or such
sooner time as all remaining Option Holders have submitted Purchase Option
Notices, the Special Servicer shall notify the Option Holder whose
Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Special Servicer shall
also notify the Trustee of such effective exercise. In the event that more
than one Option Holder exercises its Purchase Option at the same price,
the Purchase Option Notice from the Controlling Class Option Holder or its
assignee or if none, then the first Purchase Option Notice received by the
Special Servicer shall be effective. The exercise of any Purchase Option
pursuant to this clause (iii) shall be irrevocable; provided that the
assignor of the Purchase Option shall have no liability to the Trust or
any other party hereto for the failure of its third party assignee to
close the sale of the Defaulted Mortgage Loan after its exercise of the
option, and upon such failure, the Purchase Option shall revert to the
Option Holder as provided herein as if the Purchase Option had not been
exercised, and the Special Servicer shall pursue against such assignee
whatever remedies it may have against the assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Master Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the Master
Servicer has received the written notice and the Determination Information
to be provided to the Master Servicer by the Special Servicer under
Section 3.18(a)(i), whether the Option Price represents fair value for the
Defaulted Mortgage Loan; provided that, if the Special Servicer is then in
the process of obtaining a new Appraisal with respect to the related
Mortgaged Property, then the Master Servicer shall make its fair value
determination with respect to such Mortgage Loan as soon as reasonably
practicable (but in any event within thirty (30) days) after the Master
Servicer's receipt of such new Appraisal. Such fair value determination
shall be made in accordance with Servicing Standards. In determining the
fair value of any Defaulted Mortgage Loan, the Master Servicer shall take
into account, among other factors, the period and amount of the
delinquency on such Mortgage Loan, the occupancy level and physical
condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time
and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the Master Servicer shall refer to the
Determination Information and all other relevant information delivered to
it by the Special Servicer or otherwise contained in the Mortgage File;
provided that the Master Servicer shall take account of any change in
circumstances regarding the related Mortgaged Property known to the Master
Servicer that has occurred subsequent to, and that would, in the Master
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in, such appraisal. Furthermore, the Master
Servicer shall consider all available objective third-party information
obtained from generally available sources, as well as information obtained
from vendors providing real estate services to the Master Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related
Mortgaged Property is located. The Master Servicer may conclusively rely
on the opinion and reports of Independent third parties in making such
determination. The Master Servicer shall be entitled to receive out of the
applicable Certificate Account as additional compensation a reasonable
fee, not to exceed $2,500 plus reasonable out-of-pocket costs and
expenses, for each determination made in accordance with this clause (iv);
provided, however, with respect to any Mortgage Loan, such fee shall be
collectible only once. The reasonable cost of all third party consultants
and related reports, including but not limited to appraisals, inspection
reports and broker opinions of value, reasonably incurred by the Master
Servicer pursuant to this Section 3.18(a)(iv) shall constitute, and be
reimbursable as, Servicing Advances; provided that the Master Servicer may
rely on the most current Appraisal and property inspection report obtained
for the related Mortgaged Property pursuant to Section 3.12. The other
parties to this Agreement shall cooperate with all reasonable requests for
information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are
Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an Independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. The Trustee may pay such third
party a fee of up to $2,500. The reasonable costs of such Independent
third party appraisals, all inspection reports and broker opinions of
value, reasonably incurred by the Trustee or any such third party pursuant
to this paragraph shall be advanced by the Master Servicer and shall
constitute, and be reimbursable as, Servicing Advances. In connection with
the Trustee's designating an Independent third party, the Special Servicer
shall deliver to the Trustee for such Independent third party's use the
Determination Information.
In the event the Trustee or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of clause (v) below
and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
(10) Business Days of its receipt of the Special Servicer's notice
confirming that the exercise of its Purchase Option is effective. Upon
receipt of an Officer's Certificate from the Special Servicer specifying
the date for closing the purchase of the related Defaulted Mortgage Loan,
and the purchase price to be paid therefor, the Trustee shall deliver at
such closing for release to or at the direction of such Option Holder, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be
provided to it by such Option Holder and are reasonably necessary to vest
in the purchaser or any designee thereof the ownership of such Mortgage
Loan on a servicing released basis. In connection with any such purchase
by any Person other than it, the Special Servicer shall deliver the
related Mortgage File to or at the direction of the purchaser. In any
case, the Master Servicer shall deposit the purchase price (except that
portion of any purchase price constituting Gain-on-Sale Proceeds which
shall be deposited in the Gain-on-Sale Reserve Account) into the
applicable Certificate Account within one (1) Business Day following the
closing of the sale of the related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise
its purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special Servicer
shall pursue such other resolution strategies with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate, consistent with
the Asset Status Report and the Servicing Standards and the REMIC
Provisions; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a
related Purchase Option or as otherwise permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Serviced Whole Loan, such purchase
shall be a purchase of the entire REO Property, including the portion relating
to the Companion Loans). The Special Servicer may also offer to sell to any
Person any REO Property (in the case of a Serviced Whole Loan, such sale shall
be a sale of the entire REO Property, including the portion relating to the
Companion Loans), if and when the Special Servicer determines, consistent with
the Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund and the Companion Holders. The Special Servicer
shall give the Trustee, the Master Servicer, each related Companion Holder and
the Directing Certificateholder not less than five (5) Business Days' prior
written notice of the Purchase Price and its intention to (i) purchase any REO
Property at the Purchase Price therefor or (ii) sell any REO Property, in which
case the Special Servicer shall accept the highest offer received from any
Person for any REO Property in an amount at least equal to the Purchase Price
therefor. To the extent permitted by applicable law, and subject to the
Servicing Standards, the Master Servicer, an Affiliate of the Master Servicer,
the Special Servicer or an Affiliate of the Special Servicer, or an employee of
either of them may act as broker in connection with the sale of any REO Property
and may retain from the proceeds of such sale a brokerage commission that does
not exceed the commission that would have been earned by an independent broker
pursuant to a brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with the Servicing Standards,
that rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to the Servicing Standards, the Special Servicer shall
act on behalf of the Trust Fund and the Companion Holders in negotiating
and taking any other action necessary or appropriate in connection with
the sale of any REO Property, including the collection of all amounts
payable in connection therewith. A sale of any REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Master Servicer, the Special Servicer or the Trust Fund
(except that any contract of sale and assignment and conveyance documents
may contain customary warranties of title, so long as the only recourse
for breach thereof is to the Trust Fund) and, if consummated in accordance
with the terms of this Agreement, none of the Master Servicer, the Special
Servicer, the Depositor nor the Trustee shall have any liability to the
Trust Fund or any Certificateholder or Companion Holder with respect to
the purchase price therefor accepted by the Special Servicer or the
Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
with respect to each AB Whole Loan, any right of the related Companion Holder
pursuant to the terms of the related Intercreditor Agreement to purchase the
related AB Mortgage Loan or related REO Property shall be given priority over
any provision described in this Section 3.18, subject, to the extent applicable,
to any rights of a mezzanine lender as set forth in Section 3.18(e). If the
related Mortgage Loan or REO Property is purchased by a related Companion
Holder, repurchased by the applicable Mortgage Loan Seller or otherwise ceases
to be subject to this Agreement, the related Companion Loan will no longer be
subject to this Agreement. None of the Trustee, the Master Servicer nor the
Trust Fund shall acquire a Companion Loan.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as and to the extent set forth in the related
mezzanine intercreditor agreement.
(f) In the event the Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither the Master Servicer nor the Special
Servicer shall exercise such right.
(g) Notwithstanding anything herein to the contrary, the holder of a
Companion Loan may be entitled to purchase the related Serviced Mortgage Loan in
accordance with the terms and conditions set forth in the related Intercreditor
Agreement.
(h) With respect to the JQH Hotel Portfolio Mortgage Loan, if the
JQH Hotel Portfolio Pari Passu Companion Loan is subject to a fair value
purchase option under the BACM 2007-3 Pooling Agreement, the BACM 2007-3 Special
Servicer will be required to determine the purchase price for the JQH Hotel
Portfolio Mortgage Loan. Each Option Holder shall have an option to purchase the
JQH Hotel Portfolio Mortgage Loan at the purchase price determined by the BACM
2007-3 Special Servicer under the BACM 2007-3 Pooling Agreement.
With respect to each Serviced Whole Loan with a related Serviced
Securitized Companion Loan, upon the related Mortgage Loan becoming a Defaulted
Mortgage Loan, the Trustee shall promptly notify, in writing, each related
Companion Holder (such notice shall include the option price for such Serviced
Securitized Companion Loan as determined by the Special Servicer based on the
same methodology for determining the fair value of the related Mortgage Loan) or
if such Serviced Securitized Companion Loan has been securitized, the applicable
trustee under the Other Pooling and Servicing Agreement (who shall be instructed
to promptly notify, in writing, the "controlling class representative" (as
defined in the related Other Pooling and Servicing Agreement) of that
securitization or an analogous party). Upon receipt of such notice, the related
"controlling class representative" (as defined in the related Other Pooling and
Servicing Agreement) or analogous party shall have the right, at its option, to
purchase its respective Serviced Securitized Companion Loan from the trust
established pursuant to the related Other Pooling and Servicing Agreement for a
price determined by the Special Servicer in accordance with Section 3.18 hereof,
with respect to such Serviced Securitized Companion Loan. Such Purchase Option
shall otherwise be on the same terms as the Purchase Option provided to the
Controlling Class Option Holder in Section 3.18(a) mutatis mutandis.
Section 3.19 Additional Obligations of the Master Servicer and
Special Servicer. (a) The Master Servicer shall deliver all Compensating
Interest Payments on the Mortgage Loans that it is responsible for servicing
hereunder to the Trustee for deposit in the Distribution Account on each P&I
Advance Date, without any right of reimbursement therefor.
(b) The Master Servicer shall provide to each Companion Holder any
reports or notices expressly required to be delivered to such Companion Holder
pursuant to the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the applicable Certificate Account and available for
distribution on the next Distribution Date, the Master Servicer or the Trustee,
each at its own option and in its sole discretion, as applicable, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one month collection period ending on the then current
Determination Date, for successive one-month periods for a total period not to
exceed 12 months and any election to so defer or not to defer shall be deemed to
be in accordance with the Servicing Standards. If the Master Servicer (or the
Trustee) makes such an election at its sole option and in its sole discretion to
defer reimbursement with respect to all or a portion of a Nonrecoverable Advance
(together with interest thereon), then such Nonrecoverable Advance (together
with interest thereon) or portion thereof shall continue to be fully
reimbursable in the subsequent collection period (subject, again, to the same
sole option to defer; it is acknowledged that, in such a subsequent period, such
Nonrecoverable Advance shall again be payable first from principal collections
as described above prior to payment from other collections). In connection with
a potential election by the Master Servicer (or the Trustee) to refrain from the
reimbursement of a particular Nonrecoverable Advance or portion thereof during
the one month collection period ending on the related Determination Date for any
Distribution Date, the Master Servicer (or the Trustee) shall further be
authorized to wait for principal collections on the Mortgage Loans to be
received before making its determination of whether to refrain from the
reimbursement of a particular Nonrecoverable Advance or portion thereof) until
the end of such collection period; provided, however, if, at any time the Master
Servicer or the Trustee, as the case may be, elects not to refrain from
obtaining such reimbursement or otherwise determines that the reimbursement of a
Nonrecoverable Advance during a one-month collection period will exceed the full
amount of the principal portion of general collections deposited in the
collection accounts for such Distribution Date, then the Master Servicer or the
Trustee, as applicable, shall use its reasonable efforts to give Xxxxx'x and S&P
15 days' notice of such determination, unless (1) the Master Servicer or the
Trustee, as applicable, determines in its sole discretion that waiting 15 days
after such a notice could jeopardize the Master Servicer's or the Trustee's
ability, as applicable, to recover such Nonrecoverable Advances, (2) changed
circumstances or new or different information becomes known to the Master
Servicer or the Trustee, as applicable, that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the Master Servicer has not timely received from the Trustee
information requested by the Master Servicer to consider in determining whether
to defer reimbursement of a Nonrecoverable Advance; provided that, if clause
(1), (2) or (3) apply, the Master Servicer or the Trustee, as applicable, shall
give Xxxxx'x and S&P notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account or Distribution
Account, as applicable, allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The Master Servicer or the
Trustee, as applicable, shall have no liability for any loss, liability or
expense resulting from any notice provided to Xxxxx'x and S&P contemplated by
the immediately preceding sentence. Nothing herein shall give the Master
Servicer or the Trustee the right to defer reimbursement of a Nonrecoverable
Advance to the extent of any principal collections then available in the
Certificate Accounts pursuant to Section 3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to the Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standards and/or with respect to the Trustee, constitute a violation of any
fiduciary duty to Certificateholders or any contractual obligation hereunder. If
the Master Servicer or the Trustee, as applicable, determines, in its sole
discretion, that its ability to fully recover the Nonrecoverable Advances has
been compromised, then the Master Servicer or the Trustee, as applicable, shall
be entitled to immediate reimbursement of Nonrecoverable Advances with interest
thereon at the Reimbursement Rate from all amounts in its Certificate Account
for such Distribution Date (deemed first from principal and then interest). Any
such election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The Master Servicer's
or the Trustee's, as the case may be, decision to defer reimbursement of such
Nonrecoverable Advances as set forth above is an accommodation to the
Certificateholders and shall not be construed as an obligation on the part of
the Master Servicer or the Trustee, as applicable, or a right of the
Certificateholders. Nothing herein shall be deemed to create in the
Certificateholders a right to prior payment of distributions over the Master
Servicer's or the Trustee's, as applicable, right to reimbursement for Advances
(deferred or otherwise) and accrued interest thereon. In all events, the
decision to defer reimbursement or to seek immediate reimbursement of
Nonrecoverable Advances shall be deemed to be in accordance with the Servicing
Standards and none of the Master Servicer, the Trustee or the other parties to
this Agreement shall have any liability to one another or to any of the
Certificateholders or any of the Companion Holders for any such election that
such party makes as contemplated by this section or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), Section 3.20(j) and Section 6.07 but subject
to any other conditions set forth thereunder, and, with respect to any Serviced
Whole Loan, subject to the rights of the related Companion Holder to advise the
Master Servicer with respect to, or consent to, a modification, waiver or
amendment pursuant to the terms of the related Intercreditor Agreement, the
Master Servicer shall not modify, waive or amend a Mortgage Loan and/or a
Companion Loan without the prior written consent of the Special Servicer;
provided that the Master Servicer shall forward to the Special Servicer requests
to extend the maturity date of a Mortgage Loan and/or Companion Loan that is not
a Specially Serviced Mortgage Loan, and the Special Servicer may approve such
request; provided, further, except as provided in the following sentence,
subject to Section 6.07, no such extension entered into pursuant to this Section
3.20(a) shall extend the Maturity Date beyond the earlier of (i) two years prior
to the Rated Final Distribution Date and (ii) in the case of a Mortgage Loan
secured by a leasehold estate and not also the related fee interest, the date
twenty years or, to the extent consistent with the Servicing Standards giving
due consideration to the remaining term of the ground lease, ten years, prior to
the expiration of such leasehold estate. If such extension would extend the
Maturity Date of a Mortgage Loan and/or Companion Loan for more than twelve
months from and after the original Maturity Date of such Mortgage Loan and/or
Companion Loan and such Mortgage Loan and/or Companion Loan is not in default or
default with respect thereto is not reasonably foreseeable, the Master Servicer
must provide the Trustee, the Special Servicer and the Directing
Certificateholders with an Opinion of Counsel (at the expense of the related
Mortgagor to the extent permitted under the Mortgage Loan documents and, if not
required to be paid by the Mortgagor, from the Certificate Account as an expense
of the Trust) that such extension would not constitute a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b). Notwithstanding the foregoing, the
Master Servicer, with respect to Non-Specially Serviced Mortgage Loans that it
is responsible for servicing, without the consent of the Special Servicer, may
modify or amend the terms of any Mortgage Loan and/or Companion Loan in order to
(i) cure any ambiguity or mistake therein or (ii) correct or supplement any
provisions therein which may be inconsistent with any other provisions therein
or correct any error; provided that, if the Mortgage Loan and/or Companion Loan
is not in default or default with respect thereto is not reasonably foreseeable,
such modification or amendment would not be a "significant modification" of the
Mortgage Loan and/or Companion Loan within the meaning of Treasury Regulations
Section 1.860G-2(b).
Subject to Section 6.07 herein, applicable law and the Mortgage Loan
or Companion Loan documents, neither the Master Servicer nor the Special
Servicer shall permit the substitution of any Mortgaged Property (or any portion
thereof) for one or more other parcels of real property at any time the Mortgage
Loan and/or Companion Loan is not in default pursuant to the terms of the
related Mortgage Loan and/or Companion Loan documents or default with respect
thereto is not reasonably foreseeable unless (i) the Master Servicer or the
Special Servicer, as applicable, obtains from each Rating Agency (and delivers
to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates or if applicable, any class
of Companion Loan Securities and (ii) either (a) such substitution is at the
unilateral option of the Mortgagor or otherwise occurs automatically pursuant to
the terms of the Mortgage Loan in effect on the Startup Day, within the meaning
of Treasury Regulations Section 1.1001-3, or (b) it has received an Opinion of
Counsel to the effect that such substitution would not be a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan and/or Companion Loan or otherwise, the release of collateral
or the pledge of additional collateral) of the terms of a Specially Serviced
Mortgage Loan with respect to which a payment default or other material default
has occurred or a payment default or other material default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is reasonably likely to produce a greater
recovery on a net present value basis (the relevant discounting to be performed
at the related Mortgage Rate) to the Trust and, if applicable, the Companion
Holders as the holders of such Companion Loans than liquidation of such
Specially Serviced Mortgage Loan, then the Special Servicer may agree to a
modification, waiver or amendment of such Specially Serviced Mortgage Loan,
subject to (x) the provisions of this Section 3.20(b) and Section 3.20(c), (y)
the approval of the Directing Certificateholder as provided in Sections 3.21 and
6.07 and (z) with respect to any Serviced Whole Loan, the rights of the related
Companion Holder to advise the Special Servicer with respect to, or consent to,
such modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by the Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) To the extent consistent with this Agreement, the Master
Servicer or the Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan or Companion Loan that is not in default or as to
which default is not reasonably foreseeable only if it provides the Trustee with
an Opinion of Counsel (at the expense of the related Mortgagor or such other
Person requesting such waiver, modification or amendment or, if such expense
cannot be collected from the related Mortgagor or such other Person, at the
expense of the Trust Fund; provided that unless the applicable Loan Documents
preclude charging the related Mortgagor from paying such expense of the Opinion
of Counsel, the Master Servicer or Special Servicer, as applicable, shall not
agree to any such waiver, modification or amendment unless the related Mortgagor
or such other Person requesting such waiver, modification or amendment shall pay
such expense) to the effect that the contemplated waiver, modification or
amendment (i) will not be a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not
cause (x) either of the Lower-Tier REMIC or the Upper-Tier REMIC to fail to
qualify as a REMIC for purposes of the Code or (y) either of the Lower-Tier
REMIC or the Upper-Tier REMIC to be subject to any tax under the REMIC
Provisions. Notwithstanding the foregoing, neither the Master Servicer nor the
Special Servicer may waive the payment of any Yield Maintenance Charge or the
requirement that any prepayment of a Mortgage Loan be made on a Due Date, or if
not made on a Due Date, be accompanied by all interest that would be due on the
next Due Date with respect to any Mortgage Loan or Companion Loan that is not a
Specially Serviced Mortgage Loan.
(e) In the event of a modification that creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
(other than the Class A-2FL Certificates) or the Class A-2FL Regular Interest
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Master Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Master Servicer's or the
Special Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Companion Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to the Master Servicer or the Special Servicer, as the case may be, as
additional servicing compensation, a reasonable or customary fee, for the
additional services performed in connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the Master Servicer or the Special
Servicer, as the case may be, and the related Mortgagor (and by any guarantor of
the related Mortgage Loan, if such guarantor's signature is required by the
Special Servicer in accordance with the Servicing Standards).
(h) The Master Servicer with respect to the Non-Specially Serviced
Mortgage Loans it is servicing hereunder and the Special Servicer with respect
to the Specially Serviced Mortgage Loans shall notify the Rating Agencies, the
Trustee, the Directing Certificateholder, the related Companion Holder, if
applicable, and each other in writing of any modification, waiver or amendment
of any term of any Mortgage Loan or Companion Loan and the date thereof, and
shall deliver to the Trustee or the related Custodian with a copy to the Master
Servicer (if such notice is being delivered by the Special Servicer) for deposit
in the related Mortgage File, an original counterpart of the agreement relating
to such modification, waiver or amendment, promptly (and in any event within 10
Business Days) following the execution thereof. Following receipt of the Master
Servicer's or the Special Servicer's, as applicable, delivery of the aforesaid
modification, waiver or amendment to the Trustee, the Trustee shall forward a
copy thereof to each Holder of a Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class T and Class NR Certificate upon
request.
(i) [RESERVED].
(j) Notwithstanding the foregoing, neither the Master Servicer nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan, any Serviced Whole
Loan or Companion Loan unless such defeasance complies with Treasury Regulations
Section 1.860G-2(a)(8) and the Master Servicer or the Special Servicer, as
applicable, has received (i) a certificate of an Independent certified public
accountant to the effect that such substituted property will provide cash flows
sufficient to meet all payments of interest and principal (including payments at
maturity) on such Mortgage Loan, any Serviced Whole Loan or Companion Loan in
compliance with the requirements of the terms of the related Mortgage Loan
documents and, if applicable, Companion Loan documents, (ii) one or more
Opinions of Counsel (at the expense of the related Mortgagor) to the effect that
the Trustee, on behalf of the Trust Fund, will have a first priority perfected
security interest in such substituted Mortgaged Property; provided, however, to
the extent consistent with the related Mortgage Loan documents and, if
applicable, Companion Loan documents, the related Mortgagor shall pay the cost
of any such opinion as a condition to granting such defeasance, (iii) to the
extent permissible under the related Mortgage Loan documents and, if applicable,
Companion Loan documents, the Master Servicer or Special Servicer, as applicable
shall use its reasonable efforts to require the related Mortgagor to pay all
costs of such defeasance, including but not limited to the cost of maintaining
any successor Mortgagor and (iv) to the extent permissible under the Mortgage
Loan documents and, if applicable, Companion Loan documents, the Master Servicer
or Special Servicer, as applicable shall obtain, at the expense of the related
Mortgagor, written confirmation from the Rating Agencies that such defeasance
will not cause the downgrade, withdrawal or modification of the then current
ratings of the Certificates (or, insofar as there is then outstanding any class
of Companion Loan Securities then rated by such Rating Agency, such class of
securities); provided, however, that (a) the Master Servicer or Special
Servicer, as applicable, shall not be required to obtain such written
confirmation: from S&P to the extent that the Master Servicer or the Special
Servicer has delivered a defeasance certificate substantially in the form of
Exhibit FF for any Mortgage Loan which (together with any Mortgage Loans
cross-collateralized with such Mortgage Loans): (a) is (A) not one of the ten
largest Mortgage Loans by Stated Principal Balance, (B) a Mortgage Loan with a
Cut-off Date Principal Balance of less than $35,000,000 and (C) a Mortgage Loan
the represents less than 5% of the Cut-off Date Principal Balance of all
Mortgage Loans and (b) the Master Servicer or Special Servicer, as applicable
shall not be required to obtain the Xxxxx'x confirmation referenced in clause
(v) above with respect to any Mortgage Loan which has a Stated Principal Balance
less than $20,000,000 and represents less than 5% of the Stated Principal
Balance of all the Mortgage Loans, so long as such Mortgage Loan is not one of
the ten largest Mortgage Loans by Stated Principal Balance. Notwithstanding the
foregoing, in the event that requiring the Mortgagor to pay for the items
specified in clauses (ii), (iv) and (v) in the preceding sentence would be
inconsistent with the related Mortgage Loan documents, such costs shall be paid
by the related Mortgage Loan Seller as set forth in the first paragraph of
Section 2.03(b) as a Trust Fund expense.
(k) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
Master Servicer or the Special Servicer may permit the substitution of
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan, Serviced Whole Loan or Companion Loan, as applicable, (or
any portion thereof), in lieu of the defeasance collateral specified in the
related Mortgage Loan, Serviced Whole Loan or Companion Loan documents, as
applicable; provided that the Master Servicer or the Special Servicer reasonably
determines that allowing their use would not cause a default or event of default
to become reasonably foreseeable and the Master Servicer or the Special Servicer
receives an Opinion of Counsel (at the expense of the Mortgagor to the extent
permitted under the Mortgage Loan documents and, if applicable, Companion Loan
documents and, if not so permitted, paid out of the Certificate Account) to the
effect that such use would not be and would not constitute a "significant
modification" of such Mortgage Loan or Companion Loan pursuant to Treasury
Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse
REMIC Event with respect to either REMIC and; provided, further, the
requirements set forth in Section 3.20(j) (including the confirmation from each
Rating Agency that such defeasance would not cause the downgrade, withdrawal or
qualification of the then current ratings of the Certificates or any class of
related Companion Loan Securities) are satisfied; and provided further that such
securities are backed by the full faith and credit of the United States
government, or the Master Servicer or the Special Servicer shall obtain a
written confirmation of each Rating Agency that the use of such securities will
not result in the downgrade, withdrawal or qualification of the then current
ratings of any Class of Certificates outstanding (or, insofar as there is then
outstanding any class of Companion Loan Securities that is then rated by such
Rating Agency, such class of securities).
(l) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, the Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by the Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall the Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by the Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, the Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
(m) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall,
unless it has received prior written confirmation (the cost of which shall be
paid by the related Mortgagor, if so allowed by the terms of the related loan
documents and otherwise paid out of the Certificate Account) from the Rating
Agencies that such action will not result in a qualification, downgrade or
withdrawal of any of the ratings assigned by such Rating Agency to the
Certificates (or, insofar as there is then outstanding any class of Companion
Loan Securities then rated by such Rating Agency, such class of securities),
grant or accept any consent, approval or direction regarding the termination of
the related property manager or the designation of any replacement property
manager, with respect to any Mortgaged Property that secures a Mortgage Loan
with an unpaid principal balance that is at least equal to (i) five percent (5%)
of the then aggregate principal balance of all Mortgage Loans, (ii) $35,000,000
or (iii) one of the ten largest Mortgage Loans by Stated Principal Balance.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the Master Servicer or the Special Servicer, as the case may be,
shall promptly give notice to the other applicable servicer and the Directing
Certificateholder thereof, and the Master Servicer shall deliver the related
Mortgage File and Servicing File to the Special Servicer and shall use its
reasonable efforts to provide the Special Servicer with all information,
documents and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and, if
applicable, the related Companion Loan, either in the Master Servicer's
possession or otherwise available to the Master Servicer without undue burden or
expense, and reasonably requested by the Special Servicer to enable it to assume
its functions hereunder with respect thereto. The Master Servicer shall use its
reasonable efforts to comply with the preceding sentence within five Business
Days of the occurrence of each related Servicing Transfer Event and in any event
shall continue to act as Master Servicer and administrator of such Mortgage Loan
and, if applicable, the related Companion Loan(s) until the Special Servicer has
commenced the servicing of such Mortgage Loan and, if applicable, the related
Companion Loan. The Master Servicer shall deliver to the Trustee and the
Directing Certificateholder a copy of the notice of such Servicing Transfer
Event provided by the Master Servicer to the Special Servicer, or by the Special
Servicer to the Master Servicer, pursuant to this Section. The Trustee shall
deliver to each Controlling Class Certificateholder a copy of the notice of such
Servicing Transfer Event provided by the Master Servicer pursuant to this
Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the Master Servicer and the Directing Certificateholder and shall return the
related Mortgage File and Servicing File to the Master Servicer (or copies
thereof if copies only were delivered to the Special Servicer) and upon giving
such notice, and returning such Mortgage File and Servicing File to the Master
Servicer, the Special Servicer's obligation to service such Corrected Mortgage
Loan shall terminate and the obligations of the Master Servicer to service and
administer such Mortgage Loan and, if applicable, the Companion Loan, shall
recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File to the extent within its possession (with a copy of each such
original to the Master Servicer), and provide the Master Servicer with copies of
any additional related Mortgage Loan or Companion Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties (other
than the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event) and shall provide the Special Servicer with any
information in its possession with respect to such records to enable the Special
Servicer to perform its duties under this Agreement; provided that this
statement shall not be construed to require the Master Servicer to produce any
additional reports.
(d) No later than 60 days after a Servicing Transfer Event for a
Mortgage Loan (other than the JQH Hotel Portfolio Mortgage Loan after the JQH
Hotel Portfolio Servicing Transfer Event) and, if applicable, the Companion
Loan, the Special Servicer shall deliver to the Master Servicer, each Rating
Agency, the Trustee, each related Companion Holder and the Directing
Certificateholder, a report (the "Asset Status Report") with respect to such
Mortgage Loan or Companion Loan and the related Mortgaged Property; provided,
however, the Special Servicer shall not be required to deliver an Asset Status
Report to the Directing Certificateholder if they are the same entity. Such
Asset Status Report shall set forth the following information to the extent
reasonably determinable based on the information that was delivered to the
Special Servicer in connection with the transfer of servicing pursuant to the
Servicing Transfer Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained; provided, however, that the Special Servicer may withhold
attorney-client communications which are privileged communications;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Master Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder, does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report; provided, however, the Special Servicer
may not take any action that is contrary to applicable law, the Servicing
Standards or the terms of the applicable Mortgage Loan documents. If the
Directing Certificateholder disapproves such Asset Status Report within ten (10)
Business Days of receipt, the Special Servicer will revise such Asset Status
Report and deliver to the Directing Certificateholder, the Rating Agencies, the
related Companion Holder, if applicable, the Trustee and the Master Servicer a
new Asset Status Report as soon as practicable, but in no event later than
thirty (30) days after such disapproval. The Special Servicer shall revise such
Asset Status Report as described above in this Section 3.21(d) until the
Directing Certificateholder shall fail to disapprove such revised Asset Status
Report in writing within ten (10) Business Days of receiving such revised Asset
Status Report or until the Special Servicer makes one of the determinations
described below. Notwithstanding the foregoing, in the event the Directing
Certificateholder and the Special Servicer have been unable to agree upon an
Asset Status Report with respect to a Specially Serviced Mortgage Loan within
thirty (30) days, of the Directing Certificateholder's receipt of the initial
Asset Status Report, the Special Servicer, subject to the rights of the related
Companion Holder pursuant to the related Intercreditor Agreement, if applicable,
shall implement the actions directed by the Directing Certificateholder unless
such actions would violate the Servicing Standard, in which case the Special
Servicer shall implement the actions described in the most recent Asset Status
Report submitted to the Directing Certificateholder by the Special Servicer. The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement such report; provided such report shall have
been prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Serviced Whole
Loan is involved, the Companion Holder, and it has made a reasonable effort to
contact the Directing Certificateholder and (ii) in any case, shall determine
whether such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards. Each final Asset Status
Report shall be delivered to the Master Servicer and Trustee (upon request), the
related Companion Holder, if applicable, and each Rating Agency.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction or disapproval of the Directing Certificateholder shall
(a) require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standards and to maintain the REMIC status of each of the Lower-Tier
REMIC and the Upper-Tier REMIC, or (b) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions, or (c)
expose the Master Servicer, the Special Servicer, the Depositor, the Mortgage
Loan Sellers, the Trust Fund, the Trustee or their respective officers,
directors, employees or agents to any claim, suit or liability or (d) materially
expand the scope of the Special Servicer's, Trustee's or the Master Servicer's
responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (v) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the Master Servicer shall with reasonable promptness give notice
thereof, and shall use its reasonable efforts to provide the Special Servicer
with all information relating to the Mortgage Loan or Companion Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within
five Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) The Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations hereunder; provided that the
Sub-Servicing Agreement as amended or modified: (i) is consistent with this
Agreement in all material respects and requires the Sub-Servicer to comply with
all of the applicable conditions of this Agreement; (ii) provides that if the
Master Servicer shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), the Trustee
or its designee shall thereupon assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer under such agreement, or, alternatively, may act in accordance with
Section 7.02 hereof under the circumstances described therein (subject to
Section 3.22(g) hereof); (iii) provides that the Trustee, for the benefit of the
Certificateholders, the related Companion Holder (if applicable) and the Trustee
(as holder of the Class A-2FL Regular Interest and the Uncertificated Lower-Tier
Interests) and the Trustee shall be a third party beneficiary under such
Sub-Servicing Agreement, but that (except to the extent the Trustee or its
designee assumes the obligations of the Master Servicer thereunder as
contemplated by the immediately preceding clause (ii)) none of the Trust Fund,
the Trustee, the Special Servicer, any successor Master Servicer or any
Certificateholder (or the related Companion Holder, if applicable) shall have
any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty; provided, however,
the Initial Sub-Servicing Agreements may only be terminated by the Trustee or
its designees as contemplated by Section 3.22(g) hereof and in such additional
manner as is provided in such Sub-Servicing Agreement; (v) does not permit the
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund and (vi) does not permit the Sub-Servicer to modify any
Mortgage Loan unless and to the extent the Master Servicer is permitted
hereunder to modify such Mortgage Loan. Any successor Master Servicer hereunder
shall, upon becoming successor Master Servicer, be assigned and shall assume any
Sub-Servicing Agreements from the predecessor master servicer (subject to
Section 3.22(g) hereof). In addition, each Sub-Servicing Agreement entered into
by the Master Servicer may but need not provide that the obligations of the
Sub-Servicer thereunder shall terminate with respect to any Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan; provided, however, the Sub-Servicing Agreement may provide (if
the Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although
it need not so provide) that the Sub-Servicer will continue to make all Advances
and calculations and prepare all reports required under the Sub-Servicing
Agreement with respect to Specially Serviced Mortgage Loans and continue to
collect its Primary Servicing Fees as if no Servicing Transfer Event had
occurred and with respect to REO Properties (and the related REO Loans) as if no
REO Acquisition had occurred and to render such incidental services with respect
to such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for in such Sub-Servicing Agreement. The Master Servicer shall deliver
to the Trustee copies of all Sub-Servicing Agreements, and any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by the Master Servicer include actions taken or to
be taken by a Sub-Servicer on behalf of the Master Servicer; and, in connection
therewith, all amounts advanced by any Sub-Servicer (if the Sub-Servicing
Agreement provides for Advances by the Sub-Servicer, although it need not so
provide) to satisfy the obligations of the Master Servicer hereunder to make
Advances shall be deemed to have been advanced by the Master Servicer out of its
own funds and, accordingly, in such event, such Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer, and, for so long as they are outstanding,
such Advances shall accrue interest in accordance with Section 3.03(d), such
interest to be allocable between the Master Servicer and such Sub-Servicer as
may be provided (if at all) pursuant to the terms of the Sub-Servicing
Agreement. For purposes of this Agreement, the Master Servicer shall be deemed
to have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer shall notify the Special Servicer, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer,
except that the Master Servicer need not provide such notice as to the Initial
Sub-Servicing Agreements.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the Master
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each of its Sub-Servicers under the
related Sub-Servicing Agreement. Subject to Sections 11.01 and 11.02, such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as is in accordance with the
Servicing Standards. The Master Servicer shall have the right to remove a
Sub-Servicer retained by it in accordance with the terms of the related
Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of the Master Servicer
under any Sub-Servicing Agreement, the Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22 (except to the extent provided in Article XI with respect
to the obligations of any Sub-Servicer that is an Initial Sub-Servicer) the
Master Servicer shall remain obligated and responsible to the Trustee, the
Special Servicer, holders of the Companion Loans serviced hereunder and the
Certificateholders for the performance of the Master Servicer's obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible, and the Master
Servicer shall pay the fees of any Sub-Servicer under any Sub-Servicing
Agreement as and when due from its own funds. In no event shall the Trust Fund
bear any termination fee required to be paid to any Sub-Servicer as a result of
such Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, the Trustee shall not be held liable
for any negligence, and shall be indemnified by the Sub-Servicer, with respect
to, or misuse of, any such power of attorney by a Sub-Servicer, and provided
further that the use of such power of attorney by a Sub-Servicer is subject to
the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate any
Sub-Servicing Agreement entered into between the Master Servicer and any
Sub-Servicer with or without cause and without a fee. Notwithstanding the
foregoing or any other contrary provision in this Agreement, the Trustee and any
successor Master Servicer shall assume each Initial Sub-Servicing Agreement and
(i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the Master Servicer pursuant to the terms
hereof (and within the same period of time required herein), within a sufficient
period of time to allow the Sub-Servicer to fulfill its obligations under such
Sub-Servicing Agreement and in no event later than one Business Day prior to the
applicable Determination Date (or such other date as specified herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein,
unless (i) the Special Servicer receives the consent of the Directing
Certificateholder and (ii) the Special Servicer receives the written
confirmation of Xxxxx'x that such agreement will not cause the downgrade,
withdrawal or qualification of any of the then current ratings assigned to any
Class of Certificates.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicer. (a) The Master Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, each Companion
Holder and to the Trustee, the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) Master Servicer is a national banking association, duly
organized, validly existing and in good standing under the laws of the
United States, and the Master Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, does not (A) violate the Master
Servicer's organizational documents, (B) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets or (C) violate any law, rule, regulation, order,
judgment or decree to which the Master Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect the ability of the Master Servicer to perform its
obligations under this Agreement;
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Master Servicer, enforceable against the Master
Servicer in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Master Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Master Servicer's reasonable judgment is likely to materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Master Servicer to
perform its obligations under this Agreement;
(vii) The Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions of the Master
Servicer contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained or can be obtained prior to
the actual performance by the Master Servicer of its obligations under
this Agreement, or which, if not obtained would not have a materially
adverse effect on the ability of the Master Servicer to perform its
obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, each Companion Holder, the Depositor, the Trustee and the
Master Servicer, as of the Closing Date, that:
(i) The Special Servicer is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
State of Massachusetts, and the Special Servicer is in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's organizational documents or (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or which is applicable to
it or any of its assets, or (C) violate any law, rule, regulation, order,
judgment or decree to which the Special Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Special Servicer to perform
its obligations under this Agreement or its financial condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto constitutes a valid, legal and
binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject (A) to
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment could reasonably be
expected to materially and adversely affect the ability of the Special
Servicer to perform its obligations under this Agreement;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c); and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, or which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account and Excess Interest
Distribution Account. (a) On each P&I Advance Date relating to any Interest
Accrual Period ending in any January and on any P&I Advance Date which occurs in
a year which is not a leap year relating to any Interest Accrual Period ending
in any December (unless, in either case, the related Distribution Date will be
the final Distribution Date), the Trustee, in respect of the Actual/360 Mortgage
Loans, shall deposit into the Interest Reserve Account, an amount equal to one
day's interest on the Stated Principal Balance of the Interest Reserve Loans as
of the Due Date occurring in the month preceding the month in which such P&I
Advance Date occurs at the related Net Mortgage Rate, to the extent a full
Monthly Payment or P&I Advance is made in respect thereof (all amounts so
deposited in any consecutive February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March (or in February if
the related Distribution Date will be the final Distribution Date), the Trustee
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January and February (if applicable), if
any, and deposit such amount into the Lower-Tier Distribution Account.
(c) On or prior to the related P&I Advance Date, the Master Servicer
is required to remit to the Trustee for deposit into the Excess Interest
Distribution Account an amount equal to the Excess Interest received during the
related Due Period.
Section 3.26 Directing Certificateholder Contact with Master
Servicer. No less often than on a monthly basis, the Master Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
via telephone available to verbally answer questions from the Directing
Certificateholder regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Master Servicer or the Special Servicer, as
the case may be, is responsible.
Section 3.27 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Trustee and to notify the Master Servicer, the Trustee and Special Servicer of
the transfer of any Certificate of a Controlling Class, the selection of a
Directing Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase of a
Certificate to notify the Master Servicer, Special Servicer and Trustee when
such Certificateholder is appointed Directing Certificateholder and when it is
removed or resigns. To the extent there is only one Controlling Class
Certificateholder and it is also the Special Servicer, it shall be the Directing
Certificateholder.
(b) Once a Directing Certificateholder has been selected, the Master
Servicer, the Special Servicer, the Depositor, the Trustee and each other
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Master Servicer, Special Servicer, the Trustee and each
other Controlling Class Certificateholder, in writing, of the resignation of
such Directing Certificateholder or the selection of a new Directing
Certificateholder. Upon the resignation of a Directing Certificateholder, the
Trustee shall request the Controlling Class Certificateholders to select a new
Directing Certificateholder.
(c) Until it receives notice to the contrary the Master Servicer and
the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Controlling Class Certificateholder, and the
Directing Certificateholder.
(d) Upon request, the Trustee shall deliver to the Special Servicer
and the Master Servicer a list of each Controlling Class Certificateholder and
the Directing Certificateholder, including names and addresses. In addition to
the foregoing, within two (2) Business Days of receiving notice of the selection
of a new Directing Certificateholder or the existence of a new Controlling Class
Certificateholder, the Trustee shall notify the Master Servicer and the Special
Servicer. Notwithstanding the foregoing, American Capital Strategies, Ltd. shall
be the initial Directing Certificateholder and the initial Controlling Class
Certificateholder and shall remain so until a successor is appointed pursuant to
the terms of this Agreement.
(e) Until it receives notice to the contrary, the Master Servicer,
the Special Servicer and the Trustee shall be entitled to rely on the preceding
sentence with respect to the identity of the Directing Certificateholder and the
Controlling Class Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Trustee shall notify the related Certificateholders (through the
Depository) of such event.
(g) With respect to a Serviced Whole Loan and any approval and
consent rights in this Agreement with respect to such Serviced Whole Loan, the
holder of the related Serviced Mortgage Loan shall exercise such rights in
accordance with the related Intercreditor Agreement; provided that the Directing
Certificateholder may exercise the portion of such rights allocated to the
related Serviced Mortgage Loan.
(h) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder may take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
(i) All requirements of the Master Servicer and the Special Servicer
to provide notices, reports, statements or other information (including the
access to information on a website) provided to the Directing Certificateholder
contained in this Agreement shall also apply to each Companion Holder with
respect to information relating to the related Serviced Whole Loan (subject to
any confidentiality requirements imposed upon the Directing Certificateholder).
Section 3.28 Intercreditor Agreements. The Master Servicer and
Special Servicer acknowledge and agree that each Serviced Whole Loan being
serviced under this Agreement and each Mortgage Loan with mezzanine debt is
subject to the terms and provisions of the related Intercreditor Agreement
and/or related mezzanine intercreditor agreement, as applicable, and each agrees
to service each such Serviced Whole Loan and each Mortgage Loan with mezzanine
debt in accordance with the related Intercreditor Agreement and/or related
mezzanine intercreditor agreement, as applicable, and this Agreement, including,
without limitation, effecting distributions and allocating reimbursement of
expenses in accordance with the related Intercreditor Agreement and/or mezzanine
intercreditor agreement, as applicable, and, in the event of any conflict, the
related Intercreditor Agreement and/or mezzanine intercreditor agreement, as
applicable, shall govern. Notwithstanding anything to the contrary in this
Agreement, the Master Servicer and Special Servicer agree not to take any action
with respect to a Serviced Whole Loan or the related Mortgaged Property without
the prior consent of the related Companion Holder to the extent that the related
Intercreditor Agreement provides that such Companion Holder is required to
consent to such action. When the related Companion Holder's consent to any such
action is required under the related Intercreditor Agreement, the Directing
Certificateholder (other than any Companion Holder acting as Directing
Certificateholder by virtue of being the Serviced Whole Loan Controlling Holder
with respect to such Mortgage Loan) shall not have any consent rights related to
such Mortgage Loan. Nothing herein shall be deemed to override the provisions of
the Intercreditor Agreements with respect to the rights of the Companion Holders
thereunder (but this statement shall not modify the duty of the Master Servicer
and the Special Servicer to act in accordance with the Servicing Standards in
connection with servicing actions) and in the event of any inconsistency between
the provisions of an Intercreditor Agreement and the provisions of this
Agreement relating to the rights and obligations of the Trustee, as holder of
the related Mortgage Loan, and the related Companion Holder, the Intercreditor
Agreement shall control with respect to such Serviced Whole Loan. The Master
Servicer and Special Servicer acknowledge and agree that each Companion Holder
and mezzanine lender may have the right to cure certain defaults with respect to
the related Serviced Mortgage Loan, and to purchase the related Mortgage Loan,
as applicable, in each case pursuant to the terms and conditions of the related
Intercreditor Agreement and/or mezzanine intercreditor agreement, as applicable.
Notwithstanding any provision of this Agreement to the contrary,
consistent with the Servicing Standards, the servicing rights and obligations of
the Special Servicer with respect to the Mezz Cap AB Companion Loan will be
limited pursuant to the terms of the related Mezz Cap AB Intercreditor Agreement
prior to, or after the discontinuance of, a "Material Default" (as defined in
Section 3(b) of such Intercreditor Agreement).
Neither the Master Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such Intercreditor
Agreement. Notwithstanding any provision of any Intercreditor Agreement that may
otherwise require the Master Servicer or the Special Servicer to abide by any
instruction or direction of a Companion Holder, neither the Master Servicer nor
the Special Servicer shall be required to comply with any instruction or
direction the compliance with which requires an Advance that constitutes or
would constitute a Nonrecoverable Advance. In no event shall any expense arising
from compliance with an Intercreditor Agreement (or from compliance with any
intercreditor agreement with respect to a related mezzanine loan) constitute an
expense to be borne by the Master Servicer or Special Servicer for its own
account without reimbursement. In no event shall the Master Servicer or the
Special Servicer be required to consult with or obtain the consent of any
Companion Holder unless such Companion Holder has delivered notice of its
identity and contact information to each of the parties to this Agreement (upon
which notice each of the parties to this Agreement shall be conclusively
entitled to rely). As of the Closing Date, the contact information for the
Companion Holders is set forth in Section 11.05 under this Agreement. In no
event shall the Master Servicer or the Special Servicer be required to consult
with or obtain the consent of a new Directing Certificateholder or a new
Controlling Class Certificateholder if the Trustee has not delivered notice to
the Master Servicer or the Special Servicer as required under Section 3.27(d).
No direction or disapproval of the Companion Holders shall (a)
require or cause the Master Servicer or Special Servicer (i) to violate the
terms of a Mortgage Loan, applicable law or any provision of this Agreement or
(ii) to act, or fail to act, in any manner that is or would not be in accordance
with the Servicing Standards or that would in any way fail to maintain the REMIC
status of each of the Lower-Tier REMIC and the Upper-Tier REMIC or the grantor
trust status of the Grantor Trust or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) materially expand the scope of the Special Servicer's,
Trustee's or the Master Servicer's responsibilities under this Agreement.
Section 3.29 Companion Paying Agent. (a) The Master Servicer shall
be the Companion Paying Agent with respect to the Companion Loans related to
Mortgage Loans that it is responsible for servicing hereunder. Each Companion
Paying Agent undertakes to perform such duties and only such duties as are
specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve any
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, the duties and
obligations of each Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. No Companion Paying Agent shall be liable
except for the performance of such duties and obligations and no implied
covenants or obligations shall be read into this Agreement against a Companion
Paying Agent. In the absence of bad faith on the part of a Companion Paying
Agent, such Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to such Companion Paying Agent by any Person and
which on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Master Servicer pursuant
to Article VII of this Agreement, the applicable Companion Paying Agent shall be
deemed simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of a Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.30 Companion Register. Each Companion Paying Agent shall
maintain a register (collectively, the "Companion Register") on which it will
record the names and address of, and wire transfer instructions for, the
applicable Companion Holders from time to time, to the extent such information
is provided in writing to it by each Companion Holder. The initial Companion
Holders, along with their respective name, address, wiring instructions and tax
identification number, are listed on Exhibit R hereto. In the event a Companion
Holder transfers a Companion Loan without notice to the relevant Companion
Paying Agent, such Companion Paying Agent shall have no liability for any
misdirected payment in the Companion Loan and shall have no obligation to
recover and redirect such payment.
The applicable Companion Paying Agent shall promptly provide the
name and address of the Companion Holder to any party hereto or any successor
Companion Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. Such Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
Section 3.31 Swap Contract. (a) On or before the Closing Date, the
Trustee, not in its individual capacity but solely in its capacity as Trustee,
on behalf of the Trust, shall enter into the Swap Contract and related
agreements with the Swap Counterparty.
(b) On the Business Day prior to each P&I Advance Date, based on the
reports provided by the Master Servicer pursuant to Section 3.12(e), information
that the Trustee obtains from the Swap Counterparty and the Swap Contract, and
subject to the priorities set forth in Sections 4.01(a), 4.01(b) and 4.01(d)
hereof, the Trustee shall calculate the Class A-2FL Net Swap Payment and notify
the Swap Counterparty in accordance with the terms of the Swap Contract.
(c) No later than 4:00 p.m. New York City time on each Distribution
Date, the Trustee shall remit the Class A-2FL Net Swap Payment, if any, to the
Swap Counterparty from the Floating Rate Account; provided that upon the
occurrence and during the continuation of a Class A-2FL Distribution Conversion,
the Trustee shall not make such payments to such Swap Counterparty. Promptly
upon receipt of any payment or other receipt in respect of the Swap Contract,
the Trustee shall deposit the same into the Floating Rate Account.
(d) The Trustee shall at all times enforce the Trust's rights under
the Swap Contract. In the event of a Swap Default, the Trustee shall promptly
provide written notice to the Holders of the Class A-2FL Certificates and shall
be required, subject to the Trustee's determination that costs of enforcement
will be recoverable from or indemnified by the Holders of the Class A-2FL
Certificates, to take such actions (following the expiration of any applicable
grace period specified in the Swap Contract), unless otherwise directed in
writing by the Holders of 25% (by Certificate Balance) of the Class A-2FL
Certificates to enforce the rights of the Trust under the Swap Contract as may
be permitted by the terms thereof and use any Swap Termination Fees received
from the applicable Swap Counterparty to enter into a replacement interest rate
swap contract on substantially identical terms or on such other terms reasonably
acceptable to the Trustee, with a replacement swap counterparty that would not
cause a Rating Agency Trigger Event, subject, in each case, to written
confirmation by the Rating Agencies that such action will not result in a
qualification, downgrade or withdrawal of the then-current ratings of the
Certificates. If the costs attributable to entering into a replacement interest
rate swap contract would exceed the amount of any Swap Termination Fees, a
replacement interest rate swap contract shall not be entered into and any such
proceeds will instead be distributed to the Holders of the Class A-2FL
Certificates on the immediately succeeding Distribution Date. The Trustee shall
be entitled to require reasonable assurances of payment (including, without
limitation, reasonable indemnity therefor) from the Holders of the Class A-2FL
Certificates prior to the incurrence of any costs in connection with the
enforcement of the Swap Contract.
Any Class A-2FL Distribution Conversion shall become permanent
following the determination by the Trustee not to enter into a replacement
interest rate swap contract and distribution of any Swap Termination Fees to the
Holders of the Class A-2FL Certificates. Any such Swap Default (or termination
of the Swap Contract) and the consequent Class A-2FL Distribution Conversion
shall not, in and of itself, constitute an Event of Default under this
Agreement.
Upon any change (or notification to the Trustee that such change is
imminent) in the payment terms on the Class A-2FL Certificates including as a
result of a Class A-2FL Distribution Conversion, termination of a Class A-2FL
Distribution Conversion, a Swap Default or the cure of a Swap Default, the
Trustee shall promptly notify DTC of the change in payment terms.
(e) In the event that the Swap Contract is terminated and no
replacement interest rate swap agreement is entered into within 30 days of such
termination, the Trustee shall provide notice of such termination to the Class
A-2FL Certificateholders, which notice shall include: "The Swap Contract with
respect to the Class A-2FL Certificates is terminated as of [date].
Certificateholders and beneficial owners that are Plans are advised that the
Exemption will no longer apply to the Class A-2FL Certificates, effective 60
days after the receipt of this notice. "Exemption", as used in this notice,
shall mean Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14,979 (March
28, 2002), granted by the U.S. Department of Labor to X.X. Xxxxxx Securities
Inc. All other capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing Agreement."
(f) Any costs and expenses related to the Swap Contract (other than
the Class A-2FL Net Swap Payments) will only be payable (subsequent to the
distribution of all amounts of principal and interest and reimbursement of
Collateral Support Deficits payable to the Class A-2FL Certificates) from the
Floating Rate Account, which in no circumstances will constitute Additional
Trust Fund Expenses.
(g) The Trustee shall establish a Swap Counterparty Collateral
Account. The Trustee shall deposit all collateral received from the Swap
Counterparty under any Credit Support Annex (as defined in the Swap Contract) of
the Swap Contract into the Swap Counterparty Collateral Account. The only
permitted withdrawal from or application of funds on deposit in, or otherwise to
the credit of, a Swap Counterparty Collateral Account shall be (i) for
application to obligations of the Swap Counterparty under the Swap Contract if
the Swap Contract becomes subject to early termination or upon default by the
Swap Counterparty or (ii) to return collateral to the Swap Counterparty when and
as required by the Swap Contract. The Trustee agrees to give the Swap
Counterparty prompt notice if it obtains knowledge that the Swap Counterparty
Collateral Account or any funds on deposit therein or otherwise to the credit of
the Swap Counterparty Collateral Account, shall become subject to any writ,
order, judgment, warrant of attachment, execution or similar process. Funds
credited to the Swap Counterparty Collateral Account shall be applied as
contemplated in the Swap Contract. Subject to the terms of the Swap Contract,
proceeds of the liquidation of Swap Contract collateral (if such Swap Contract
becomes subject to early termination or upon default by the Swap Counterparty)
shall be deposited in the Floating Rate Account for application.
Section 3.32 [RESERVED]
Section 3.33 Certain Matters Relating to the JQH Hotel Portfolio
Mortgage Loan. (a) In the event that any of the BACM 2007-3 Trustee, BACM 2007-3
Master Servicer or BACM 2007-3 Special Servicer under the BACM 2007-3 Pooling
Agreement shall be replaced in accordance with the terms of the BACM 2007-3
Pooling Agreement, the Master Servicer and the Special Servicer shall
acknowledge its successor as the successor to such trustee, master servicer or
special servicer, as the case may be.
(b) The Master Servicer shall deliver, or cause to be delivered, to
the Trustee, following receipt from the BACM 2007-3 Master Servicer, BACM 2007-3
Special Servicer or the BACM 2007-3 Trustee under the BACM 2007-3 Pooling
Agreement, any servicing reports concerning the JQH Hotel Portfolio Whole Loan.
Section 3.34 Additional Matters Relating to the Certain of the
Mortgage Loans. (a) The Master Servicer, upon receiving knowledge, shall notify
S&P if the related Mortgagor of any of the 10 largest Mortgage Loans (or Crossed
Group that would be one of the 10 largest Mortgage Loans if it were treated as
single Mortgage Loan) by Stated Principal Balance incurs additional subordinate,
pari-passu or mezzanine debt in accordance with the related Mortgage Loan
documents.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Trustee shall be deemed to transfer the Lower-Tier Regular Distribution Amount
from the Lower-Tier Distribution Account to the Upper-Tier Distribution Account
in the amounts and priorities set forth in Section 4.01(b) with respect to each
Class of Uncertificated Lower-Tier Interests, and immediately thereafter, shall
make distributions thereof from the Upper-Tier Distribution Account in the
following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(i) first, to pay interest, concurrently, (i) on the Class X-0,
Xxxxx X-0, Class A-3, Class A-4 and Class A-SB Certificates and the Class
A-2FL Regular Interest, pro rata, from the portion of the Available
Distribution Amount for such Distribution Date attributable to mortgage
loans in Loan Group 1 up to an amount equal to the aggregate Interest
Distribution Amount for those Classes; (ii) on the Class A-1A Certificates
from the portion of the Available Distribution Amount for such
Distribution Date attributable to mortgage loans in Loan Group 2 up to an
amount equal to the aggregate Interest Distribution Amount for such Class;
and (iii) on the Class X Certificates from the portion of the Available
Distribution Amount for such Distribution Date up to an amount equal to
the Interest Distribution Amount for such Class, without regard to Loan
Group, in each case based upon their respective entitlements to interest
for that Distribution Date; provided, however, on any Distribution Date
where the Available Distribution Amount (or applicable portion of the
Available Distribution Amount) is not sufficient to make distributions in
full to the related Classes as described above, the Available Distribution
Amount will be allocated among the above Classes without regard to Loan
Group, pro rata, in accordance with the respective amounts of
Distributable Certificate Interest in respect of such Classes on such
Distribution Date, in an amount equal to all Interest Distribution Amounts
in respect of each such Class for such Distribution Date;
(ii) second, to the Class A-1, Class A-2, Class A-3, Class A-4,
Class A-SB and Class A-1A Certificates and the Class A-2FL Regular
Interest, in reduction of the Certificate Balances of those Classes,
concurrently: (i)(A) first, to the Class A-SB Certificates, in an amount
equal to the Group 1 Principal Distribution Amount for such Distribution
Date and, after the Certificate Balance of the Class A-1A Certificates has
been reduced to zero, the Group 2 Principal Distribution Amount remaining
after payments specified in clause (ii) below have been made on such
Distribution Date, until the Certificate Balance of the Class A-SB
Certificates is reduced to the Class A-SB Planned Principal Balance, (B)
then, to the Class A-1 Certificates, in an amount equal to the Group 1
Principal Distribution Amount (or the portion of it remaining after
payments specified in clause (i)(A) above have been made) for such
Distribution Date and, after the Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Group 2 Principal Distribution
Amount remaining after payments specified in clause (i)(A) above and
clause (ii) below have been made on such Distribution Date, until the
Certificate Balance of the Class A-1 Certificates is reduced to zero, (C)
pro rata, to the Class A-2 Certificates and the Class A-2FL Regular
Interest, in an amount equal to the Group 1 Principal Distribution Amount
(or the portion of it remaining after payments specified in clause (i)(A)
and (B) above have been made) for such Distribution Date and, after the
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Group 2 Principal Distribution Amount remaining after payments
specified in clause (i)(A) and (B) above and clause (ii) below have been
made on such Distribution Date, until the Certificate Balances of the
Class A-2 Certificates and A-2FL Regular Interest are reduced to zero, (D)
then to the Class A-3 Certificates, in an amount equal to the Group 1
Principal Distribution Amount (or the portion of it remaining after
payments specified in clauses (i)(A), (B) and (C) above have been made)
for such Distribution Date and, after the Certificate Balance of the Class
A-1A Certificates is reduced to zero, the Group 2 Principal Distribution
Amount remaining after payments specified in clauses (i)(A), (B) and (C)
above and clause (ii) below have been made on such Distribution Date,
until the Certificate Balance of the Class A-3 Certificates is reduced to
zero, (E) then, to the Class A-4 Certificates, in an amount equal to the
Group 1 Principal Distribution Amount (or the portion of it remaining
after payments specified in clause (i)(A), (B), (C) and (D) above have
been made) for such Distribution Date and, after the Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the Group 2
Principal Distribution Amount remaining after payments specified in clause
(i)(A), (B), (C) and (D) above and clause (ii) below have been made on
such Distribution Date, until the Certificate Balance of the Class A-4
Certificates is reduced to zero, (F) to the Class A-SB Certificates in an
amount equal to the Group 1 Principal Distribution Amount (or the portion
of it remaining after payments specified in clause (i)(A), (B), (C), (D)
and (E) above have been made) for such Distribution Date and, after the
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Group 2 Principal Distribution Amount remaining after payments
specified in clause (i)(A), (B), (C), (D) and (E) above and clause (ii)
below have been made on such Distribution Date, until the Certificate
Balance of the Class A-SB Certificates is reduced to zero; and (ii) to the
Class A-1A Certificates, in an amount equal to the Group 2 Principal
Distribution Amount and, after the Certificate Balance of the Class A-4
and Class A-SB Certificates have been reduced to zero, the Group 1
Principal Distribution Amount remaining after payments specified in
clauses (i)(A), (B), (C), (D), (E) and (F) above have been made on such
Distribution Date, until the Certificate Balance of the Class A-1A
Certificates is reduced to zero;
(iii) third, to the Class X-0, Xxxxx X-0, Class A-3, Class A-4,
Class A-SB and Class A-1A Certificates and the Class A-2FL Regular
Interest, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to each Class), until all amounts of Collateral
Support Deficit previously allocated to those Classes, but not previously
reimbursed, have been reimbursed in full;
(iv) fourth, to the Class A-M Certificates, in respect of interest,
up to an amount equal to the Interest Distribution Amount for that Class;
(v) fifth, following reduction of the Certificate Balances of the
Class A Certificates (other than the Class A-2FL Certificates) and the
Class A-2FL Regular Interest to zero, to the Class A-M Certificates, in
reduction of their Certificate Balance, an amount equal to the Principal
Distribution Amount (or the portion of it remaining after distributions on
the Class A Certificates (other than the Class A-2FL Certificates) and the
Class A-2FL Regular Interest on that Distribution Date), until the
Certificate Balance of that Class is reduced to zero;
(vi) sixth, to the Class A-M Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class A-M
Certificates, but not previously reimbursed, have been reimbursed in full;
(vii) seventh, to the Class A-J Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(viii) eighth, following reduction of the Certificate Balances of
the Class A Certificates (other than the Class A-2FL Certificates) and the
Class A-2FL Regular Interest and Class A-M Certificates to zero, to the
Class A-J Certificates an amount equal to the Principal Distribution
Amount (or the portion of it remaining after distributions on the Class A
Certificates (other than the Class A-2FL Certificates) and the Class A-2FL
Regular Interest and Class A-M Certificates on that Distribution Date),
until the Certificate Balance of that Class is reduced to zero;
(ix) ninth, to the Class A-J Certificates until all amounts of
Collateral Support Deficit previously allocated to that Class, but not
previously reimbursed, have been reimbursed in full;
(x) tenth, to the Class B Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount for that Class;
(xi) eleventh, following reduction of the Certificate Balances of
the Class A Certificates (other than the Class A-2FL Certificates) and the
Class A-2FL Regular Interest, Class A-M Certificates and Class A-J
Certificates to zero, to the Class B Certificates, in reduction of their
Certificate Balance, an amount equal to the Principal Distribution Amount
(or the portion of it remaining after distributions on the Class A
Certificates (other than the Class A-2FL Certificates) and the Class A-2FL
Regular Interest, Class A-M Certificates and Class A-J Certificates on
that Distribution Date), until the Certificate Balance of that Class is
reduced to zero;
(xii) twelfth, to the Class B Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Class C Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xiv) fourteenth, following reduction of the Certificate Balances of
the Class A Certificates (other than the Class A-2FL Certificates) and the
Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates and Class B Certificates to zero, to the Class C
Certificates, in reduction of their Certificate Balance, an amount equal
to the Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates and Class B Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(xv) fifteenth, to the Class C Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class C
Certificates, but not previously reimbursed, have been reimbursed in full;
(xvi) sixteenth, to the Class D Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xvii) seventeenth, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates and Class C Certificates to zero, to
the Class D Certificates, in reduction of their Certificate Balance, an
amount equal to the Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates and Class C
Certificates on that Distribution Date), until the Certificate Balance of
that Class is reduced to zero;
(xviii) eighteenth, to the Class D Certificates, until all amounts
of Collateral Support Deficit previously allocated to the Class D
Certificates, but not previously reimbursed, have been reimbursed in full;
(xix) nineteenth, to the Class E Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xx) twentieth, following reduction of the Certificate Balances of
the Class A Certificates (other than the Class A-2FL Certificates) and the
Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates and Class D
Certificates to zero, to the Class E Certificates, in reduction of their
Certificate Balance, an amount equal to the Principal Distribution Amount
(or the portion of it remaining after distributions on the Class A
Certificates (other than the Class A-2FL Certificates) and the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates and Class D Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(xxi) twenty-first, to the Class E Certificates, until all amounts
of Collateral Support Deficit previously allocated to the Class E
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxii) twenty-second, to the Class F Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xxiii) twenty-third, following reduction of the Certificate
Balances of the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates and Class E Certificates to zero, to
the Class F Certificates, in reduction of their Certificate Balance, an
amount equal to the Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates and Class E Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(xxiv) twenty-fourth, to the Class F Certificates, until all amounts
of Collateral Support Deficit previously allocated to the Class F
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxv) twenty-fifth, to the Class G Certificates, in respect of
interest up to an amount equal to the Interest Distribution Amount for
that Class;
(xxvi) twenty-sixth, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates and Class F Certificates to zero, to
the Class G Certificates, in reduction of their Certificate Balance, an
amount equal to the Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates and Class F
Certificates on that Distribution Date), until the Certificate Balance of
that Class is reduced to zero;
(xxvii) twenty-seventh, to the Class G Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class G
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxviii) twenty-eighth, to the Class H Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xxix) twenty-ninth, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates and Class G
Certificates to zero, to the Class H Certificates, in reduction of their
Certificate Balance, an amount equal to the Principal Distribution Amount
(or the portion of it remaining after distributions on the Class A
Certificates (other than the Class A-2FL Certificates) and the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(xxx) thirtieth, the Class H Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class H
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxi) thirty-first, to the Class J Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xxxii) thirty-second, following reduction of the Certificate
Balances of the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates to zero, to
the Class J Certificates, in reduction of their Certificate Balance, an
amount equal to the Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(xxxiii) thirty-third, to the Class J Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class J
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxiv) thirty-fourth, to the Class K Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xxxv) thirty-fifth, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates and Class J Certificates to zero, to
the Class K Certificates, in reduction of their Certificate Balance, an
amount equal to the Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates and Class J
Certificates on that Distribution Date), until the Certificate Balance of
that Class is reduced to zero;
(xxxvi) thirty-sixth, to the Class K Certificates, until all amounts
of Collateral Support Deficit previously allocated to the Class K
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxvii) thirty-seventh, to the Class L Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xxxviii) thirty-eighth, following reduction of the Certificate
Balances of the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates to zero, to the Class L
Certificates, in reduction of their Certificate Balance, an amount equal
to the Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates on that Distribution Date), until
the Certificate Balance of that Class is reduced to zero;
(xxxix) thirty-ninth, to the Class L Certificates, until all amounts
of Collateral Support Deficit previously allocated to the Class L
Certificates, but not previously reimbursed, have been reimbursed in full;
(xl) fortieth, the Class M Certificates, in respect of interest, up
to an amount equal to the Interest Distribution Amount for that Class;
(xli) forty-first, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates and Class L Certificates to zero, to the Class M
Certificates, in reduction of their Certificate Balance, an amount equal
to the Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and Class L Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(xlii) forty-second, to the Class M Certificates, until all amounts
of Collateral Support Deficit previously allocated to the Class M
Certificates, but not previously reimbursed, have been reimbursed in full;
(xliii) forty-third, to the Class N Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xliv) forty-fourth, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates and Class M Certificates to zero, to
the Class N Certificates, in reduction of their Certificate Balance, an
amount equal to the Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates and Class M
Certificates on that Distribution Date), until the Certificate Balance of
that Class is reduced to zero;
(xlv) forty-fifth, to the Class N Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class N
Certificates, but not previously reimbursed, have been reimbursed in full;
(xlvi) forty-sixth, to the Class P Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(xlvii) forty-seventh, following reduction of the Certificate
Balances of the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates to zero, to the Class P
Certificates, in reduction of their Certificate Balance, an amount equal
to the Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates on that Distribution Date), until
the Certificate Balance of that Class is reduced to zero;
(xlviii) forty-eighth, to the Class P Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class P
Certificates, but not previously reimbursed, have been reimbursed in full;
(xlix) forty-ninth, to the Class Q Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(l) fiftieth, following reduction of the Certificate Balances of the
Class A Certificates (other than the Class A-2FL Certificates) and the
Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates and Class P Certificates to zero, to the Class Q
Certificates, in reduction of their Certificate Balance, an amount equal
to the Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class P Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(li) fifty-first, to the Class Q Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class Q
Certificates, but not previously reimbursed, have been reimbursed in full;
(lii) fifty-second, to the Class T Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(liii) fifty-third, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates, Class P Certificates and Class Q Certificates to zero, to
the Class T Certificates, in reduction of their Certificate Balance, an
amount equal to the Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates, Class P Certificates and Class Q
Certificates on that Distribution Date), until the Certificate Balance of
that Class is reduced to zero;
(liv) fifty-fourth, to the Class T Certificates, until all amounts
of Collateral Support Deficit previously allocated to the Class T
Certificates, but not previously reimbursed, have been reimbursed in full;
(lv) fifty-fifth, to the Class NR Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount for
that Class;
(lvi) fifty-sixth, following reduction of the Certificate Balances
of the Class A Certificates (other than the Class A-2FL Certificates) and
the Class A-2FL Regular Interest, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates, Class P Certificates, Class Q Certificates and Class T
Certificates to zero, to the Class NR Certificates, in reduction of their
Certificate Balance, an amount equal to the Principal Distribution Amount
(or the portion of it remaining after distributions on the Class A
Certificates (other than the Class A-2FL Certificates) and the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class P
Certificates, Class Q Certificates and Class T Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(lvii) fifty-seventh, to the Class NR Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class NR
Certificates, but not previously reimbursed, have been reimbursed in full;
and
(lviii) fifty-eighth, to the Class R Certificates, the amount, if
any, of the Available Distribution Amount remaining in the Upper-Tier
Distribution Account with respect to that Distribution Date.
If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, or in the event of a Swap Default, the Master
Servicer shall promptly notify the Trustee and the Trustee will use commercially
reasonable efforts to cause DTC to make the revised distribution on a timely
basis on such Distribution Date. None of the Master Servicer, the Special
Servicer or the Trustee shall be liable or held responsible for any resulting
delay in the making of such distribution to Certificateholders solely on the
basis of the actions described in the preceding sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a), 4.01(c)
and 4.01(d). On each Distribution Date, each Uncertificated Lower-Tier Interest
shall be deemed to receive distributions in respect of interest in an amount
equal to the Interest Distribution Amount in respect of its Related Certificates
and its related Component of the Class X Certificates, in each case to the
extent actually distributable thereon as provided in Section 4.01(a). For this
purpose, interest distributed on the Class X Certificates shall be treated as
having been paid to its Components pro rata, based on the interest accrued with
respect thereto at its Class X Strip Rate. Such amounts distributed to the
Uncertificated Lower-Tier Interests in respect of principal and interest with
respect to any Distribution Date are referred to herein collectively as the
"Lower-Tier Regular Distribution Amount," and shall be made by the Trustee by
deeming such Lower-Tier Regular Distribution Amount to be withdrawn from the
Lower-Tier REMIC to be deposited in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto, as adjusted for the allocation of Collateral Support
Deficits, as provided in Sections 4.04(b) and 4.04(c) and of Certificate
Deferred Interest as provided in Section 4.06. The initial principal balance of
each Uncertificated Lower-Tier Interest equals the respective Original
Lower-Tier Principal Amount. The pass-through rate with respect to each
Uncertificated Lower-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Regular Distribution
Amount and distribution of Yield Maintenance Charges pursuant to Section
4.01(d)(iii) shall be distributed to the Holders of the Class LR Certificates
(but only to the extent of the Available Distribution Amount for such
Distribution Date remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4, Class A-SB and Class A-1A Certificates
and the Class A-2FL Regular Interest without regard to Loan Group, based on
their respective Certificate Balances immediately prior to such Distribution
Date, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero, and any amounts
representing reimbursements of Collateral Support Deficits previously allocated
to such Classes, if available, will be distributed pro rata based on their
respective Certificate Balances, without regard to Loan Group.
(d) (i) (x) On each Distribution Date, Yield Maintenance Charges
collected during the related Due Period will be distributed by the Trustee to
the following Classes: to the Class A-1 Certificates, Class A-2 Certificates,
Class A-2FL Regular Interest, Class A-3 Certificates, Class A-4, Class A-SB,
Class A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates with respect to the related Loan Group (if
applicable, in the case of the Class A-1, Class A-2, Class A-2FL, Class X-0,
Xxxxx X-0, Class A-SB, Class A-1A Certificates and the Class A-2FL Regular
Interest) on each Distribution Date, in an amount equal to the product of (a) a
fraction whose numerator is the amount distributed as principal to such Class on
such Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL
Regular Interest, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates, Class A-1A Certificates, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates, Class P Certificates, Class Q
Certificates, Class T Certificates and Class NR Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates or the Class A-2FL Regular Interest, and
(c) the aggregate amount of Yield Maintenance Charges collected on such
principal prepayments during the related Due Period. If more than one such Class
of Certificates is entitled to distributions of principal with respect to the
related Loan Group on any particular Distribution Date on which Yield
Maintenance Charges are distributable, the aggregate amount of such Yield
Maintenance Charges will be allocated among all such Classes up to, and on a pro
rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge collected
during the related Due Period remaining after such distributions will be
distributed to the holders of the Class X Certificates. Notwithstanding the
foregoing, any prepayment penalties collected that are based on a percentage of
the amount being prepaid will be distributed to the Class X Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class L, Class M, Class N, Class P, Class Q, Class T, Class NR,
Class S or Residual Certificates. After the Certificate Balances of the
Class A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular
Interest, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates, Class A-1A Certificates, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates and Class K
Certificates have been reduced to zero, all Yield Maintenance Charges with
respect to the Mortgage Loans shall be distributed to the holders of the
Class X Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates and the Class A-2FL
Regular Interest on each Distribution Date pursuant to Section 4.01(d)(i)
shall first be deemed to be distributed from the Lower-Tier REMIC to the
Upper-Tier REMIC in respect of the Uncertificated Lower-Tier Interests,
pro rata based upon the amount of principal distributed in respect of each
such Class of Uncertificated Lower-Tier Interests for such Distribution
Date pursuant to Section 4.01(b) above.
(iv) Any distributions of Yield Maintenance Charges in respect of
the Class A-2FL Regular Interest shall be distributed to the Holders of
the Class A-2FL Certificates or to the Swap Counterparty as specified in
Section 4.01(k).
(e) On each Distribution Date, the Trustee shall withdraw amounts
from the Gain-on-Sale Reserve Account and shall distribute such amounts to
reimburse the Holders of the Regular Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest (in order of distribution
priority) (first deeming such amounts to be distributed with respect to the
Related Uncertificated Lower-Tier Interests) up to an amount equal to all
Collateral Support Deficits, if any, previously deemed allocated to them and
unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account will not
reduce the Certificate Balances of the Classes of Certificates or Class A-2FL
Regular Interest receiving such distributions. On any Distribution Date, amounts
held in the Gain-on-Sale Reserve Account that exceed amounts reasonably required
(as determined after reasonable consultation with the Directing
Certificateholder) to offset future Collateral Support Deficits shall be
distributed to the holders of the Class LR Certificates. Any amounts remaining
in the Gain-on-Sale Reserve Account after such distributions shall be applied to
offset future Collateral Support Deficits and related Collateral Support
Deficits and upon termination of the Trust Fund, any amounts remaining in the
Gain-on-Sale Reserve Account shall be distributed to the Class LR
Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to such
Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the Underwriters shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than the related P&I Advance Determination Date, mail to each Holder on
such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates (other than the Class A-2FL
Certificates) or Class A-2FL Regular Interest shall be made in the amounts and
manner specified in Section 4.01(a) or Section 4.01(e), as applicable, to the
Holders of the respective Class otherwise entitled to distributions of interest
and principal on such Class on the relevant Distribution Date; provided that all
distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 12.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Trustee shall
attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class S Certificates from the Excess Interest Distribution
Account.
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, each Companion Paying Agent shall make
withdrawals and payments from its Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or any of its directors, officers, employees
and agents, any amounts payable or reimbursable to any such Person
pursuant to Section 8.05, to the extent any such amounts relate solely to
the Serviced Whole Loan related to such Companion Loan, and such amounts
are to be paid by the related Companion Holder pursuant to the related
Intercreditor Agreement;
(ii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Companion Distribution Account not required to be
deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Accounts required
hereunder shall be made by the applicable Companion Paying Agent to the
Companion Holder by wire transfer in immediately available funds to the account
of such Companion Holder or an agent therefor appearing on the Companion
Register on the related Record Date (or, if no such account so appears or
information relating thereto is not provided at least five Business Days prior
to the related Record Date, by check sent by first-class mail to the address of
such Companion Holder or its agent appearing on the Companion Register). Any
such account shall be located at a commercial bank in the United States.
(k) (i) On each Distribution Date, for so long as the Certificate
Balance of the Class A-2FL Regular Interest (and correspondingly, the Class
A-2FL Certificates) has not been reduced to zero, to the extent of the Class
A-2FL Available Funds for such Distribution Date, after remitting any Class
A-2FL Net Swap Payment to the Swap Counterparty pursuant to Section 3.31(c), the
Trustee shall make distributions from the Floating Rate Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority:
(A) first, to the Holders of the Class A-2FL Certificates, in
respect of interest, up to an amount equal to the Class A-2FL
Interest Distribution Amount for such Distribution Date;
(B) second, to the Holders of the Class A-2FL Certificates, in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-2FL Principal Distribution Amount, until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-2FL Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class A-2FL Certificates (as a result of the allocation of
Collateral Support Deficit to the Class A-2FL Regular Interest) but
not previously reimbursed, has been reimbursed in full;
(D) fourth, to pay (1) any costs and expenses related to the
Swap Contract and (2) any termination payments to the Swap
Counterparty, in that order and solely to the extent provided
herein, including Section 4.01(k)(iii); and
(E) fifth, any remaining amount to the Holders of the Class
A-2FL Certificates.
(ii) So long as a Class A-2FL Distribution Conversion is not in
effect, any Yield Maintenance Charges paid on the Class A-2FL Regular
Interest shall be payable to the Swap Counterparty pursuant to the terms
of the Swap Contract on a net basis as part of the Class A-2FL Net Swap
Payment as specified in Section 3.31. On each Distribution Date for which
a Class A-2FL Distribution Conversion is in effect, any Yield Maintenance
Charges paid on the Class A-2FL Regular Interest shall be distributed to
the Holders of the Class A-2FL Certificates.
(iii) Any termination payments due to the Swap Counterparty under
the Swap Contract shall be payable solely from amounts, if any, remaining
in the Floating Rate Account after all other amounts have been paid under
the Class A-2FL Certificates (including all principal and interest amounts
outstanding and reimbursement of any Collateral Support Deficit).
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s. (a) On each Distribution Date, the Trustee shall make
available to the general public a statement (substantially in the form set forth
as Exhibit G hereto and based on the information supplied to the Trustee in the
related CMSA Investor Reporting Package (IRP) in accordance with CMSA
guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") which shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest, with respect to the Class A-2FL Certificates,
notification that the amount of interest distributed thereon is equal to
the Interest Distribution Amount with respect to the A-2FL Regular
Interest, which is being paid as a result of a Class A-2FL Distribution
Conversion, respectively;
(iii) (A) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of such Advances, in each
case, on a loan-by-loan basis as of the P&I Advance Date and (B) the
aggregate amount of all Nonrecoverable Advances on a loan-by-loan basis as
of the P&I Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Master Servicer and the Special
Servicer with respect to the Due Period for such Distribution Date
together with detailed calculations of servicing compensation paid to the
Master Servicer and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee since the previous Determination Date (or
in the case of the first Distribution Date, as of the Cut-off Date), with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxiii) LIBOR as calculated for the related Distribution Date and
the next succeeding Distribution Date;
(xxxiv) the amounts received and paid in respect of the Swap
Contract;
(xxxv) identification of any Rating Agency Trigger Event or Swap
Default
as of the close of business on the last day of the immediately
preceding calendar month with respect to the Swap Contract;
(xxxvi) the amount of any (A) payment by the Swap Counterparty as a
termination payment, (B) payments in connection with the acquisition of a
replacement interest rate swap contract, and (C) collateral posted in
connection with any Rating Agency Trigger Event;
(xxxvii) the amount of, and identification of, any payments on the
Class A-2FL Certificates in addition to the amount of principal and
interest due thereon (including without limitation, any termination
payment received in connection with the Swap Contract);
(xxxviii) a loan-by-loan listing of any material modification,
extension or waiver of a Mortgage Loan; and
(xxxix) a loan-by-loan listing of any material breach of the
representations and warranties given with respect to a Mortgage Loan by
the applicable Mortgage Loan Seller.
In the case of information furnished pursuant to clauses (i), (ii),
(x), (xi), (xxxiv) and (xxxvii) above, the amounts shall be expressed as a
dollar amount in the aggregate for all Certificates of each applicable Class and
per Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish upon request to each Person who at any time
during the calendar year was a Holder of a Certificate, a statement containing
the information set forth in clauses (i), (ii) and (xi) above as to the
applicable Class, aggregated for such calendar year or applicable portion
thereof during which such person was a Certificateholder, together with such
other information as the Trustee deems necessary or desirable, or that a
Certificateholder or Certificate Owner reasonably requests, to enable
Certificateholders to prepare their tax returns for such calendar year. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Trustee
pursuant to any requirements of the Code as from time to time are in force.
On each Distribution Date, the Trustee shall make available to the
general public via its website initially located at "xxx.xxxxxxxx.xxx" (i) the
related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement. In
addition, if the Depositor so directs the Trustee, and on terms acceptable to
the Trustee shall make certain other information and reports related to the
Mortgage Loans available through its internet website.
In addition, on each Distribution Date, the Trustee shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" and the CMSA Operating Statement Analysis Report and CMSA NOI Adjusted
Worksheets and seven CMSA data files, the Realized Loss Report and the CMSA
Advance Recovery Report to the extent delivered by the Master Servicer pursuant
to this Agreement.
The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Trustee's Internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee shall not be liable for the dissemination of information
in accordance herewith. Questions regarding the Trustee's Internet website can
be directed to the Trustee at (000) 000-0000.
Each of the Master Servicer and the Special Servicer may, at its
sole cost and expense, make available by electronic media, bulletin board
service or Internet website (in addition to making information available as
provided herein) any reports or other information the Master Servicer or the
Special Servicer, as applicable, is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder (which may be a licensed or registered investment
advisor) to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law. In connection with
providing access to the Master Servicer's or the Special Servicer's Internet
website, the Master Servicer or the Special Servicer, as applicable, shall take
reasonable measures to ensure that only such parties listed above may access
such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. The Master Servicer or
the Special Servicer, as applicable, shall not be liable for dissemination of
this information in accordance with this Agreement; provided that such
information otherwise meets the requirements set forth herein with respect to
the form and substance of such information or reports. The Master Servicer or
the Special Servicer, as applicable, shall be entitled to attach to any report
provided pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, the Master Servicer or the
Special Servicer may, at its sole cost and expense, make available by electronic
media, bulletin board service or Internet website any reports or other
information the Master Servicer or the Special Servicer, as applicable, is
required or permitted to provide to any Mortgagor with respect to such
Mortgagor's Mortgage Loan to the extent such action does not conflict with the
terms of this Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Mortgage Loans and REO Properties as may be necessary for the Master
Servicer to prepare each report and any supplemental information to be provided
by the Master Servicer to the Trustee. Neither the Trustee nor the Depositor
shall have any obligation to recompute, verify or recalculate the information
provided thereto by the Master Servicer. Unless the Trustee has actual knowledge
that any report or file received from the Master Servicer contains erroneous
information, the Trustee is authorized to rely thereon in calculating and making
distributions to Certificateholders in accordance with Section 4.01, preparing
the statements to Certificateholders required by Section 4.02(a) and allocating
Collateral Support Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. 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).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar nor
the Trustee shall have any responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished which
was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the Master Servicer shall either (i) remit to
the Trustee for deposit into the Lower-Tier Distribution Account from its own
funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in its
Certificate Account, for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the applicable
Certificate Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in the Master Servicer's records and replaced
by the Master Servicer by deposit in the Certificate Account on or before the
next succeeding P&I Advance Date (to the extent not previously replaced through
the deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). The Master Servicer shall notify
the Trustee of (i) the aggregate amount of P&I Advances for a Distribution Date
and (ii) the amount of any Nonrecoverable P&I Advances for such Distribution
Date, on or before two Business Days prior to such Distribution Date. If the
Master Servicer fails to make a required P&I Advance by 4:00 p.m., New York City
time, on any P&I Advance Date, the Trustee shall make such P&I Advance pursuant
to Section 7.05 by noon, New York City time, on the related Distribution Date,
in each case unless the Master Servicer shall have cured such failure (and
provided written notice of such cure to the Trustee) by 11:00 a.m. (New York
City Time) on such Distribution Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by the Master Servicer with respect to any Distribution Date
and each Mortgage Loan that it is responsible for servicing hereunder shall be
equal to: (i) the Monthly Payments (net of related Servicing Fees, and in the
case of the JQH Hotel Portfolio Mortgage Loan after the JQH Hotel Portfolio
Servicing Transfer Event, the applicable servicing fees payable under this
Agreement) other than Balloon Payments, that were due during the related Due
Period and delinquent as of the close of business on the Business Day preceding
the related P&I Advance Date and (ii) with respect to each Mortgage Loan as to
which the related Balloon Payment was due during or prior to the related Due
Period and was delinquent as of the close of business on the Business Day
preceding the related P&I Advance Date (including any REO Loan as to which the
Balloon Payment would have been past due), an amount equal to the Assumed
Scheduled Payment therefor. Subject to subsection (c) below, the obligation of
the Master Servicer to make such P&I Advances is mandatory, and with respect to
any Mortgage Loan or REO Loan, shall continue until the Distribution Date on
which the proceeds, if any, received in connection with a Liquidation Event or
the disposition of the REO Property, as the case may be, with respect thereto
are to be distributed. No P&I Advances shall be made with respect to a Companion
Loan.
(c) Notwithstanding anything herein to the contrary or as set forth
in the related Intercreditor Agreement, no P&I Advance shall be required to be
made hereunder if such P&I Advance would, if made, constitute a Nonrecoverable
P&I Advance. With respect to the Xxxxxxxx Xxxxx Mortgage Loan, the Master
Servicer will be required to make its determination that it has made a P&I
Advance on the Xxxxxxxx Xxxxx Mortgage Loan that is a Nonrecoverable Advance or
that any proposed P&I Advance would, if made, constitute a Nonrecoverable
Advance with respect to the Xxxxxxxx Xxxxx Mortgage Loan independently of any
determination made by any Other Servicer, under any Other Pooling and Servicing
Agreement in respect of any related Xxxxxxxx Xxxxx Pari Passu Companion Loan.
Upon making such a determination of nonrecoverability (and upon any reversal of
such determination), the Master Servicer shall promptly notify in writing
(together with supporting evidence for such determination) the Xxxxxxxx Xxxxx
Pari Passu Companion Loan Holders (and any trustee or Other Servicer under a
related Other Pooling and Servicing Agreement, as applicable).
With respect to the ChampionsGate Mortgage Loan, the Master Servicer
will be required to make its determination that it has made a P&I Advance on the
subject Mortgage Loan that is a Nonrecoverable Advance or that any proposed P&I
Advance would, if made, constitute a Nonrecoverable Advance with respect to the
subject Mortgage Loan. Upon any such determination, the Master Servicer shall
provide written notice of such determination within two Business Days to each
Other Servicer with respect to the ChampionsGate Pari Passu Companion Loan. Once
such notice has been delivered or the Master Servicer has received notice from
any Other Servicer with respect to the ChampionsGate Pari Passu Companion Loan
of a nonrecoverability determination made by such Other Servicer, no party to
this Agreement shall make any additional P&I Advances with respect to the
related Mortgage Loan until the Master Servicer has consulted with the Other
Servicer under any Other Pooling and Servicing Agreement with respect to such
Whole Loan and they agree that circumstances with respect to the related Whole
Loan have changed such that a proposed future P&I Advance would not be a
Non-Recoverable Advance. Notwithstanding the foregoing, the Master Servicer
shall not be required to abide by any determination of non-recoverability by any
Other Servicer with respect to the ChampionsGate Whole Loan if, in accordance
with the ChampionsGate Intercreditor Agreement, such Other Servicer no longer
has the approval of S&P or Xxxxx'x (and such Rating Agency has rated the
securities issued under the related Other Pooling and Servicing Agreement).
With respect to the Carespring Portfolio Mortgage Loan, the Master
Servicer will be required to make its determination that it has made a P&I
Advance on the Carespring Portfolio Mortgage Loan that is a Nonrecoverable
Advance or that any proposed P&I Advance would, if made, constitute a
Nonrecoverable Advance with respect to the Carespring Portfolio Mortgage Loan
independently of any determination made by any Other Servicer, under any Other
Pooling and Servicing Agreement in respect of any related Carespring Portfolio
Pari Passu Companion Loan. Upon making such a determination of nonrecoverability
(and upon any reversal of such determination), the Master Servicer shall
promptly notify in writing (together with supporting evidence for such
determination) the Carespring Portfolio Pari Passu Companion Loan Holders (and
any trustee or Other Servicer under a related Other Pooling and Servicing
Agreement, as applicable).
With respect to the JQH Hotel Portfolio Mortgage Loan, the Master
Servicer will be required to make its determination that it has made a P&I
Advance on the subject Mortgage Loan that is a Nonrecoverable Advance or that
any proposed P&I Advance would, if made, constitute a Nonrecoverable Advance
with respect to the subject Mortgage Loan. Upon any such determination, the
Master Servicer shall provide written notice of such determination within two
Business Days to each Other Servicer with respect to any JQH Hotel Portfolio
Pari Passu Companion Loan. Once such notice has been delivered or the Master
Servicer has received notice from any Other Servicer with respect to any JQH
Hotel Portfolio Pari Passu Companion Loan of a nonrecoverability determination
made by such Other Servicer, no party to this Agreement shall make any
additional P&I Advances with respect to the related Mortgage Loan until the
Master Servicer has consulted with the Other Servicer under any Other Pooling
and Servicing Agreement with respect to such Whole Loan and they agree that
circumstances with respect to the related Whole Loan have changed such that a
proposed future P&I Advance would not be a Non-Recoverable Advance.
Notwithstanding the foregoing, the Master Servicer shall not be required to
abide by any determination of non-recoverability by any Other Servicer with
respect to the JQH Hotel Portfolio Whole Loan if, in accordance with the JQH
Hotel Portfolio Intercreditor Agreement, such Other Servicer no longer has the
approval of S&P or Xxxxx'x (and such Rating Agency has rated the securities
issued under the related Other Pooling and Servicing Agreement).
With respect to each Xxxxx Portfolio Mortgage Loan, the Master
Servicer will be required to make its determination that it has made a P&I
Advance on such Xxxxx Portfolio Mortgage Loan that is a Nonrecoverable Advance
or that any proposed P&I Advance would, if made, constitute a Nonrecoverable
Advance with respect to the applicable Xxxxx Portfolio Mortgage Loan
independently of any determination made by any Other Servicer, under any Other
Pooling and Servicing Agreement in respect of any related Xxxxx Portfolio Pari
Passu Companion Loan. Upon making such a determination of nonrecoverability (and
upon any reversal of such determination), the Master Servicer shall promptly
notify in writing (together with supporting evidence for such determination) the
applicable Xxxxx Portfolio Pari Passu Companion Loan Holders (and any trustee or
Other Servicer under a related Other Pooling and Servicing Agreement, as
applicable).
(d) In connection with the recovery of any P&I Advance out of the
applicable Certificate Account, pursuant to Section 3.05(a), the Master Servicer
shall be entitled to pay the Trustee and itself (in that order of priority) as
the case may be out of any amounts then on deposit in such Certificate Account
(but in no event from any funds payable or allocable to a holder of any Serviced
Securitized Companion Loan), interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of such P&I Advance from the date made to
but not including the date of reimbursement; provided, however, no interest will
accrue on any P&I Advance (i) made with respect to a Mortgage Loan until after
the related Due Date has passed and any applicable grace period has expired or
(ii) if the related Monthly Payment is received after the Determination Date but
on or prior to the related P&I Advance Date. The Master Servicer shall reimburse
itself and the Trustee, as the case may be, for any outstanding P&I Advance,
subject to Section 3.19 of this Agreement, as soon as practicably possible after
funds available for such purpose are deposited in its Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Master Servicer
nor the Trustee shall make an advance for Excess Interest, Yield Maintenance
Charges, Default Interest or Penalty Charges and (ii) if an Appraisal Reduction
has been made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicer or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
(g) None of the Master Servicer or the Trustee shall advance any
amount due to be paid by the Swap Counterparty for distribution to the Class
A-2FL Certificates.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Trustee shall calculate the amount, if
any, by which (i) the aggregate Stated Principal Balance (for purposes of this
calculation only, not giving effect to any reductions of the Stated Principal
Balance for payments of principal collected on the Mortgage Loans that were used
to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section
3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not
otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans and
any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates (other than the Class A-2FL Certificates) and the Class
A-2FL Regular Interest after giving effect to distributions of principal on such
Distribution Date and the allocation of Certificate Deferred Interest pursuant
to Section 4.06 (any such deficit, the "Collateral Support Deficit"). Any
allocation of Collateral Support Deficit to a Class of Regular Certificates
(other than the Class A-2FL Certificates) and Class A-2FL Regular Interest shall
be made by reducing the Certificate Balance thereof by the amount so allocated.
Any Collateral Support Deficit allocated to the Class A-2FL Regular Interest
shall result in a corresponding reduction of the Certificate Balance of the
Class A-2FL Certificates. Any Collateral Support Deficit allocated to a Class of
Regular Certificates (or, in the case of the Class A-2FL Certificates, an amount
corresponding to any Collateral Support Deficit allocated to the Class A-2FL
Regular Interest) shall be allocated among the respective Certificates of such
Class in proportion to the Percentage Interests evidenced thereby. The
allocation of Collateral Support Deficit shall constitute an allocation of
losses and other shortfalls experienced by the Trust Fund. Reimbursement of
previously allocated Collateral Support Deficit will not constitute
distributions of principal for any purpose and will not result in an additional
reduction in the Certificate Balance of the Class of Certificates (or, in the
case of the Class A-2FL Certificates, an amount corresponding to any Collateral
Support Deficit allocated to the Class A-2FL Regular Interest) in respect of
which any such reimbursement is made. To the extent any Nonrecoverable Advances
(plus interest thereon) that were reimbursed from principal collections on the
Mortgage Loans and previously resulted in a reduction of the Principal
Distribution Amount, Loan Group 1 Principal Distribution Amount or Loan Group 2
Principal Distribution Amount are subsequently recovered on the related Mortgage
Loan, the amount of such recovery will be added to the Certificate Balance of
the Class or Classes of Certificates or Class A-2FL Regular Interest that
previously were allocated Collateral Support Deficit, in sequential order, in
each case up to the amount of the unreimbursed Collateral Support Deficit
allocated to such Class of Certificates or Class A-2FL Regular Interest. If the
Certificate Balance of any Class of Certificates or Class A-2FL Regular Interest
is so increased, the amount of unreimbursed Collateral Support Deficit of such
Class of Certificates or the Class A-2FL Regular Interest shall be decreased by
such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates (other than the Class A-2FL Certificates) and the Class
A-2FL Regular Interest will be reduced without distribution, as a write-off to
the extent of any Collateral Support Deficit, if any, allocable to such
Certificates or Class A-2FL Regular Interest, as applicable, with respect to
such Distribution Date. Any such write-off shall be allocated first, to the
Class NR Certificates; second, to the Class T Certificates; third, to the Class
Q Certificates; fourth, to the Class P Certificates; fifth, to the Class N
Certificates; sixth, to the Class M Certificates; seventh, to the Class L
Certificates; eighth, to the Class K Certificates; ninth, to the Class J
Certificates; tenth, to the Class H Certificates; eleventh, to the Class G
Certificates; twelfth, to the Class F Certificates; thirteenth, to the Class E
Certificates; fourteenth, to the Class D Certificates; fifteenth, to the Class C
Certificates; sixteenth, to the Class B Certificates; seventeenth, to the Class
A-J Certificates; eighteenth, to the Class A-M Certificates and nineteenth, to
the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates,
Class A-4 Certificates, Class A-SB Certificates and the Class A-1A Certificates
and the Class A-2FL Regular Interest, pro rata (based upon their respective
Certificate Balances), until the remaining Certificate Balances of such Classes
of Certificates or the Class A-2FL Regular Interest, as applicable, have been
reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates (other than the Class A-2FL, Class
X, Class R, Class LR and Class S Certificates) or Class A-2FL Regular Interest
pursuant to Section 4.04(b) with respect to such Distribution Date shall reduce
the Lower-Tier Principal Amount of the Related Uncertificated Lower-Tier
Interest with respect thereto as a write-off.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Trustee on each Distribution Date, only for purposes of
determining the amount of P&I Advances with respect to the related Mortgage
Loan, to the Certificate Balance of the Class NR Certificates, Class T
Certificates, Class Q Certificates, Class P Certificates, Class N Certificates,
Class M Certificates, Class L Certificates, Class K Certificates, Class J
Certificates, Class H Certificates, Class G Certificates, Class F Certificates,
Class E Certificates, Class D Certificates, Class C Certificates, Class B
Certificates, Class A-J Certificates and then the Class A-M Certificates in that
order, up to the amount of their respective Certificate Balances. On any
Distribution Date, an Appraisal Reduction that otherwise would be allocated to a
Class of Certificates will be allocated to the next most subordinate Class to
the extent that the Certificate Balance on such Distribution Date for such Class
of Certificates (prior to taking the Appraisal Reduction into account) is less
than the Appraisal Reduction for such Distribution Date.
With respect to any Serviced Whole Loan, Appraisal Reductions will
be calculated based on the aggregate outstanding principal balance of the
related Serviced Mortgage Loan and the related Companion Loan(s). Any resulting
Appraisal Reductions will be allocated, first to any subordinate Companion Loan
up to the principal amount thereof and then pro rata, to the related Mortgage
Loan and the related pari passu Companion Loan(s), if any, based on their Stated
Principal Balances.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Certificates (other
than the Class A-2FL, Class X, Class S, Class R and Class LR Certificates) and
the Class A-2FL Regular Interest shall be reduced by an amount equal to the
amount of Mortgage Deferred Interest for all Mortgage Loans for the Due Dates
occurring in the related Due Period allocated to such Class of Certificates or
the Class A-2FL Regular Interest, as applicable, such Mortgage Deferred Interest
to be allocated first, to the Class NR Certificates; second to the Class T
Certificates; third to the Class Q Certificates; fourth to the Class P
Certificates; fifth to the Class N Certificates; sixth to the Class M
Certificates; seventh to the Class L Certificates; eighth to the Class K
Certificates; ninth to the Class J Certificates; tenth, to the Class H
Certificates; eleventh, to the Class G Certificates; twelfth, to the Class F
Certificates; thirteenth, to the Class E Certificates; fourteenth, to the Class
D Certificates; fifteenth, to the Class C Certificates; sixteenth to the Class B
Certificates; seventeenth to the Class A-J Certificates; eighteenth, to the
Class A-M Certificates and nineteenth to the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates, Class A-1A Certificates and the Class A-2FL Regular Interest, pro
rata (based upon their respective Certificate Balances), in each case up to the
respective Accrued Certificate Interest for each such Class of Certificates or
the Class A-2FL Regular Interest for such Distribution Date. Certificate
Deferred Interest allocated to the Class A-2FL Regular Interest will, by virtue
of such allocation, be allocated to the Class A-2FL Certificates.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-2 Certificates, Class A-2-FL Regular Interest (and
correspondingly the Class A-2FL Certificates), Class A-3 Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class P Certificates, Class Q Certificates, Class T Certificates and Class NR
Certificates shall be increased by the amount of the Certificate Deferred
Interest allocated to such Class of Certificates or the Class A-2FL Regular
Interest, as applicable, on such Distribution Date pursuant to Section 4.06(a)
above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates or the Class A-2FL Regular Interest, as
applicable, shall be allocated in reduction of the amount of interest
distributable to the Related Uncertificated Lower-Tier Interest with respect
thereto. On each Distribution Date, to the extent provided in Section 4.06(b)
with respect to the Related Certificates, Certificate Deferred Interest will be
added to the Lower-Tier Principal Amount of the Uncertificated Lower-Tier
Interests in the same manner as the interest thereon was reduced pursuant to the
preceding sentence.
Section 4.07 Grantor Trust Reporting. The parties intend that the
portion of the Trust Fund constituting the Grantor Trust, which consists of (i)
the Excess Interest allocable to the Mortgage Loans, proceeds thereof held in
the Certificate Account pertaining to the Excess Interest allocable to the
Mortgage Loans and the Excess Interest Distribution Account and (ii) the Class
A-2FL Regular Interest, the Swap Contract, the Floating Rate Account and
proceeds thereof, shall constitute, and that the affairs of the Trust Fund
(exclusive of the Lower-Tier REMIC and the Upper-Tier REMIC) shall be conducted
so as to qualify such portion as, a "grantor trust" under subpart E, Part I of
subchapter J of the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall have no power to vary the investment of the Class A-2FL Certificateholders
in their related assets so as to improve their rate of return. In addition, the
Trustee shall (A) as soon as possible after the Swap Contract is entered into
(but no later than the first payment date under the Swap Contract), obtain a
taxpayer identification number of the Grantor Trust and deliver or cause to be
delivered the federal taxpayer identification number of the Grantor Trust on an
IRS Form W-9 to the Swap Counterparty and, if requested by the Swap Counterparty
(unless not permitted under federal income tax law), an applicable IRS Form
W-8IMY; provided that Trustee shall not be responsible for failure to obtain a
taxpayer identification number for the Grantor Trust if the Trustee timely takes
all requisite action and such failure relates solely to a delay by the IRS in
issuing such taxpayer identification number, (B) file, or cause to be filed,
Internal Revenue Service Form 1041 (or, in the event the Grantor Trust is a
WHFIT, information will be provided on Form 1099) or such other form as may be
applicable with the Internal Revenue Service with copies of the statements in
the following clause, (C) furnish, or cause to be furnished, to the Class A-2FL
Certificateholders, their allocable share of income and expense with respect to
the Class A-2FL Regular Interest and the Swap Contract, each in the time or
times and in the manner required by the Code and (D) furnish, or cause to be
furnished, to the Class S Certificateholders, their allocable share of income
with respect to Excess Interest accrued or received, as applicable.
The Grantor Trust is a WHFIT that is a WHMT. The Trustee will report
as required under the WHFIT Regulations to the extent such information as is
reasonably necessary to enable the Trustee to do so is provided to the Trustee
on a timely basis. The Trustee is hereby directed to assume that DTC is the only
"middleman" as defined by the WHFIT Regulations unless the Depositor provides
the Trustee with the identities of other "middlemen" that are
Certificateholders. The Trustee shall be entitled to rely on the first sentence
of this paragraph and shall be entitled to indemnification in accordance with
the terms of this Agreement in the event that the Internal Revenue Service makes
a determination that the first sentence of this paragraph is incorrect.
The Trustee, in its discretion, shall report required WHFIT
information using either the cash or accrual method, except to the extent the
WHFIT Regulations specifically require a different method. The Trustee shall be
under no obligation to determine whether any Certificateholder uses the cash or
accrual method. The Trustee shall make available (via its website) WHFIT
information to Certificateholders annually. In addition, the Trustee shall not
be responsible or liable for providing subsequently amended, revised or updated
information to any Certificateholder, unless requested by the Certificateholder.
The Trustee shall not be liable for failure to meet the reporting
requirements of the WHFIT Regulations nor for any penalties thereunder if such
failure is due to: (i) the lack of reasonably necessary information being
provided to the Trustee, (ii) incomplete, inaccurate or untimely information
being provided to the Trustee or (iii) the inability of the Trustee, after good
faith efforts, to alter its existing information reporting systems to capture
information necessary to fully comply with the WHFIT Regulations for the 2007
calendar year. Each owner of a class of securities representing, in whole or in
part, beneficial ownership of an interest in a WHFIT, by acceptance of its
interest in such class of securities, will be deemed to have agreed to provide
the Trustee with information regarding any sale of such securities, including
the price, amount of proceeds and date of sale. Absent receipt of information
regarding any sale of Certificates, including the price, amount of proceeds and
date of sale from the beneficial owner thereof or the Depositor, the Trustee
shall assume there is no secondary market trading of WHFIT interests.
To the extent required by the WHFIT Regulations, the Trustee shall
use reasonable efforts to publish on an appropriate website the CUSIPs for the
Certificates that represent ownership of a WHFIT. The CUSIPs so published will
represent the Rule 144A CUSIPs. The Trustee shall make reasonable good faith
efforts to keep the website accurate and updated to the extent CUSIPs have been
received. Absent the receipt of a CUSIP, the Trustee will use a reasonable
identifier number in lieu of a CUSIP. The Trustee shall not be liable for
investor reporting delays that result from the receipt of inaccurate or untimely
CUSIP information.
The Trustee shall be entitled to additional reasonable compensation
for changes in reporting required in respect of the WHFIT Regulations that arise
as a result of a change in the WHFIT Regulations or a change in interpretation
of the WHFIT Regulations by the IRS or the Depositor or its counsel, if such
change requires, in the Trustee's sole discretion, a material increase in the
Trustee's reporting obligations in respect of the related Grantor Trust.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-30. The Certificates will be issuable in registered form only;
provided, however, in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class S, Class R and
Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized initial Notional Amount of not less than $1,000,000 and in integral
multiples of $1.00 in excess thereof. The Class A-2FL will be issuable only in
minimum Denominations of authorized initial Certificate Balance of not less than
$100,000 and in integral multiples of $1.00 in excess thereof. The Offered
Certificates (other than the Class X Certificates, the Class A-2FL Certificates)
will be issuable only in minimum Denominations of authorized initial Certificate
Balance of not less than $10,000, and in integral multiples of $1.00 in excess
thereof. The Non-Registered Certificates (other than the Class S and Residual
Certificates) will be issuable in minimum Denominations of authorized initial
Certificate Balance of not less than $250,000, and in integral multiples of
$1.00 in excess thereof. If the Original Certificate Balance or initial Notional
Amount, as applicable, of any Class does not equal an integral multiple of
$1.00, then a single additional Certificate of such Class may be issued in a
minimum denomination of authorized initial Certificate Balance or initial
Notional Amount, as applicable, that includes the excess of (i) the Original
Certificate Balance or initial Notional Amount, as applicable, of such Class
over (ii) the largest integral multiple of $1.00 that does not exceed such
amount. The Class S, Class R and Class LR Certificates will be issuable only in
one or more Definitive Certificates in denominations representing Percentage
Interests of not less than 20%. With respect to any Certificate or any
beneficial interest in a Certificate, the "Denomination" thereof shall be (i)
the amount (a) set forth on the face thereof or, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial Notional Amount, as applicable, and (iii) be in
an authorized denomination, as set forth above. The Book-Entry Certificates will
be issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 is hereby initially appointed Authenticating Agent with power to
act, on the Trustee's behalf, in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, is removed as Trustee, then LaSalle Bank shall be
terminated as Authenticating Agent. If the Authenticating Agent is terminated,
the Trustee shall appoint a successor Authenticating Agent, which may be the
Trustee or an Affiliate thereof.
(b) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 - X.X. Xxxxxx 2007-LDP11, is hereby initially appointed
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Trustee, the
Special Servicer and the Master Servicer, any other bank or trust company to act
as Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe; provided that the predecessor Certificate Registrar
shall not be relieved of any of its duties or responsibilities hereunder by
reason of such appointment. The Depositor, the Trustee, the Master Servicer and
the Special Servicer shall have the right to inspect the Certificate Register or
to obtain a copy thereof at all reasonable times, and to rely conclusively upon
a certificate of the Certificate Registrar as to the information set forth in
the Certificate Register. The names and addresses of all Certificateholders and
the names and addresses of the transferees of any Certificates shall be
registered in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Master
Servicer, the Trustee, the Special Servicer and any agent of any of them shall
not be affected by any notice or knowledge to the contrary. A Definitive
Certificate is transferable or exchangeable only upon the surrender of such
Certificate to the Certificate Registrar at its office maintained at LaSalle
Bank National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services - X.X.
Xxxxxx 2007-LDP11 (the "Registrar Office") together with an assignment and
transfer (executed by the Holder or his duly authorized attorney). Subject to
the requirements of Sections 5.02(b), (c) and (d), the Certificate Registrar
shall execute and the Authenticating Agent shall duly authenticate in the name
of the designated transferee or transferees, one or more new Certificates in
Denominations of a like aggregate Denomination as the Definitive Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Section 5.02(e). Each Certificate surrendered for
registration of transfer shall be canceled, and the Certificate Registrar shall
hold such canceled Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to American
Capital Strategies, Ltd.) is to be made in reliance upon an exemption from the
Securities Act, and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit M hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit N
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit O hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit O
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate (other than a Class
S Certificate) wishes at any time to transfer such Certificate to a Person
who wishes to take delivery thereof in the form of a beneficial interest
in the related Regulation S Book-Entry Certificate or the related Rule
144A Book-Entry Certificate, such transfer may be effected only in
accordance with the Applicable Procedures, and this Section 5.02(b)(vi).
Upon receipt by the Certificate Registrar at the Registrar Office of (1)
the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(d), (2) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in such Regulation S Book-Entry Certificate or such Rule 144A Book-Entry
Certificate, as the case may be, in an amount equal to the Denomination of
the Definitive Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Depository Participant (and, in the case of
any transfer pursuant to Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with such beneficial interest,
and (4) (x) if delivery is to be taken in the form of a beneficial
interest in the Regulation S Book-Entry Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, if delivery is to be taken
in the form of a beneficial interest in the Rule 144A Book-Entry
Certificate, the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered
in the name of the Holder, and the Certificate Registrar, as custodian of
the Book-Entry Certificates, shall increase the Denomination of the
Regulation S Book-Entry Certificate or the Rule 144A Book-Entry
Certificate, as the case may be, by the Denomination of the Definitive
Certificate to be so transferred, and credit or cause to be credited to
the account of the Person specified in such instructions (who, in the case
of any increase in the Regulation S Book-Entry Certificate during the
Restricted Period, shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v); provided, however, any such transfer of a Class S Certificate
shall be made only to a transferee that is a Qualified Institutional
Buyer.
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A Class S CERTIFICATE OR A RESIDUAL
CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (d) (OTHER THAN WITH RESPECT
TO A Class S CERTIFICATE OR A RESIDUAL CERTIFICATE) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A Class S CERTIFICATE OR A RESIDUAL CERTIFICATE) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A CLASS S
CERTIFICATE OR A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates and the Class
S Certificates, no sale, transfer, pledge or other disposition of any such
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or a plan
subject to Section 4975 of the Code, or a governmental plan (as defined in
Section 3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA)
for which no election has been made under Section 410(d) of the Code subject to
any federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than, except in the case of the Class S Certificates, an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate, other than a Class S Certificate, which may be held only by
a person not described in (a) or (b) above, is presented for registration in the
name of a purchaser or transferee that is any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Master Servicer, the Special Servicer, the Underwriters, the Initial
Purchasers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Agreement. The Certificate
Registrar shall not register the sale, transfer, pledge or other disposition of
any ERISA Restricted Certificate or Class S Certificate unless the Certificate
Registrar has received either the representation letter described in clause (i)
above or in the case of an ERISA Restricted Certificate, the Opinion of Counsel
described in clause (ii) above. The costs of any of the foregoing representation
letters or Opinions of Counsel shall not be borne by any of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Underwriters, the
Initial Purchasers, the Certificate Registrar or the Trust Fund. Each
Certificate Owner of an ERISA Restricted Certificate or Class S Certificate
shall be deemed to represent that it is not a Person specified in clauses (a) or
(b) above. Any transfer, sale, pledge or other disposition of any ERISA
Restricted Certificates or Class S Certificates that would constitute or result
in a prohibited transaction under ERISA, Section 4975 of the Code or any Similar
Law, or would otherwise violate the provisions of this Section 5.02(c) shall be
deemed absolutely null and void ab initio, to the extent permitted under
applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer or the Special Servicer, as applicable, will make available, or
cause to be made available, upon request, to any Holder and any Person to whom
any such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Master Servicer, the Special Servicer or the Mortgage Loans
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause
(ii) below to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicer, the Trustee and the Certificate Registrar of any change or
impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Authenticating
Agent and the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement;
provided, however, the Certificate Registrar shall be under such liability
for a registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(c)(i)(C) above or is not a Permitted Transferee.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within five
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class X-0,
Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K or Class X Certificates) or a beneficial interest in a Book-Entry
Certificate representing a Non-Registered Certificate is being held by or for
the benefit of a Person who is not an Eligible Investor, or that such holding is
unlawful under the laws of a relevant jurisdiction, then the Certificate
Registrar shall have the right to void such transfer, if permitted under
applicable law, or to require the investor to sell such Definitive Certificate
or beneficial interest in such Book-Entry Certificate to an Eligible Investor
within 14 days after notice of such determination and each Certificateholder by
its acceptance of a Certificate authorizes the Certificate Registrar to take
such action.
(f) The Certificate Registrar shall provide an updated copy of the
Certificate Register to the Trustee, the Master Servicer, the Special Servicer
and the Depositor upon written request.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
(i) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments made or received under the Swap Contract and payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
(j) No transfer of any definitive Class A-2FL Certificate presented
or surrendered for registration of transfer or exchange shall be made unless the
transfer or exchange is accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Trustee, duly executed by such
Certificateholder or his attorney duly authorized in writing (with copies sent
directly from such Certificateholders to the Swap Counterparty). The Trustee
shall promptly forward any such IRS Form received by the Trustee to the Swap
Counterparty. Each such Class A-2FL Certificateholder by its purchase of such a
Certificate shall be deemed to consent to any IRS Form being so forwarded.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (B) the Depositor is unable to locate a qualified successor, or
(ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify the affected Certificate Owners,
through the Depository with respect to all, any Class or any portion of any
Class of the Certificates or (iii) the Certificate Registrar determines that
Definitive Certificates are required in accordance with the provisions of
Section 5.03(e), of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository or any custodian acting on behalf of the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, within five Business Days of such request if made at
the Registrar Office, or within 10 Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), the Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Trustee, the Special Servicer, the
Authenticating Agent and the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Certificates,
the registered Holders of such Definitive Certificates shall be recognized as
Certificateholders hereunder and, accordingly, shall be entitled directly to
receive payments on, to exercise Voting Rights with respect to, and to transfer
and exchange such Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted, or if the Special Servicer or the
Master Servicer, on the Trustee's behalf, has been directed to institute, any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate Registrar will execute, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate (other than a Definitive
Certificate that is a Class S Certificate) wishes at any time to transfer such
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Book-Entry Certificate, such transfer may be effected
only in accordance with Applicable Procedures, Section 5.02(b) and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), and all required items pursuant to Section
5.02(b)(v), the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar as custodian of the Book-Entry Certificates shall increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be credited
to the account of the Person specified in such instructions a corresponding
Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered to the
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 actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Certificate Registrar and any agents of
any of them may treat the person in whose name such Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, except as and to
the extent provided in the definition of "Certificateholder," and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them shall be affected by notice
to the contrary except as provided in Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Trustee shall make such determination based
on a certificate of such Person which shall be addressed to the Trustee and
shall specify, in reasonable detail satisfactory to the Trustee, such Person's
name and address, the Class and Certificate Balance or Notional Amount of the
Regular Certificate beneficially owned, and any intermediaries through which
such Person's interest in such Regular Certificate is held (any such
certification, other than one which the Trustee shall refuse to recognize
pursuant to the following procedures, a "Certificate Ownership Certification");
provided, however, the Trustee shall not knowingly recognize such Person as a
Certificate Owner if such Person, to the actual knowledge of a Responsible
Officer of such party, acquired its interest in a Regular Certificate in
violation of the transfer restrictions herein, or if such Person's certification
that it is a Certificate Owner is in direct conflict with information obtained
by the Trustee from the Depository or any Depository Participant with respect to
the identity of a Certificate Owner; provided, however, to the extent the
Trustee is required to obtain such Certificate Owner information from the
Depository or any Depository Participant, the Trustee shall be reimbursed for
any cost or expense in obtaining such information from the Distribution Account.
The Trustee may conclusively rely on such Certificate Ownership Certification.
The Master Servicer will only be required to acknowledge the status of any
Person as a Certificateholder or Certificate Owner to the extent that the
Trustee, at the request of the Master Servicer, identifies such Person as a
Certificateholder or Certificate Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 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 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicer and the Special Servicer each will
keep in full effect its existence, rights and franchises as an entity under the
laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer each
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial 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
and the Special Servicer, as the case may be, hereunder, without the execution
or filing of any paper (other than an assumption agreement wherein the successor
shall agree to perform the obligations of and serve as the Depositor, the Master
Servicer or the Special Servicer, as the case may be, in accordance with the
terms of this Agreement) or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, such
merger, consolidation or succession will not result in a withdrawal, downgrading
or qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency).
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others. (a) None of the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates or any of the
directors, officers, employees or agents of any of the foregoing shall be under
any liability to the Trust, the Certificateholders or the Companion Holders for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, this
provision shall not protect the Depositor, the Master Servicer, the Special
Servicer and their respective Affiliates or any such Person against any breach
of warranties or representations made herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of negligent disregard of obligations
and duties hereunder. The Depositor, the Master Servicer and the Special
Servicer and their respective Affiliates and any director, officer, member,
manager, employee or agent of the Depositor, the Master Servicer or the Special
Servicer and their respective Affiliates may rely on any document of any kind
which, prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor, the Master Servicer (including in
their capacities as Companion Paying Agents), the Special Servicer and their
respective Affiliates and any director, officer, employee or agent of any of the
foregoing shall be indemnified and held harmless by the Trust against any and
all claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
incurred in connection with any legal action (whether in equity or at law) or
claim relating to this Agreement, the Mortgage Loans, the Companion Loans or the
Certificates, other than any loss, liability or expense: (i) specifically
required to be borne thereby pursuant to the terms hereof; (ii) incurred in
connection with any breach of a representation or warranty made by it herein;
(iii) incurred by reason of bad faith, willful misconduct or negligence in the
performance of its obligations or duties hereunder, or by reason of negligent
disregard of such obligations or duties; or (iv) in the case of the Depositor
and any of its directors, officers, employees and agents, incurred in connection
with any violation by any of them of any state or federal securities law. The
Master Servicer and the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format) as
contemplated by and in accordance with this Agreement and reasonably believed or
in good faith believed by the Master Servicer or the Special Servicer to be
genuine and to have been signed or presented by the proper party or parties and
each of them may consult with counsel, in which case any written advice of
counsel or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel.
(b) None of the Depositor, the Master Servicer and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action (whether in equity or at law), proceeding,
hearing or examination that is not incidental to its respective duties under
this Agreement or which in its opinion may involve it in any expense or
liability not recoverable from the Trust Fund; provided, however, the Depositor,
the Master Servicer or the Special Servicer may in its discretion undertake any
such action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans and Companion Loans on deposit in the Certificate Accounts, as
provided by Section 3.05(a).
(c) The Master Servicer and the Special Servicer agree to indemnify
the Depositor, the Trustee, the Companion Holders with respect to Serviced Whole
Loans and the Trust and any director, officer, employee or agent thereof, and
hold them harmless, from and against any and all claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses that any of them may sustain arising
from or as a result of any willful misfeasance, bad faith or negligence of the
Master Servicer or the Special Servicer, as the case may be, in the performance
of its obligations and duties under this Agreement or by reason of negligent
disregard by the Master Servicer or the Special Servicer, as the case may be, of
its duties and obligations hereunder or by reason of breach of any
representations or warranties made herein; provided that such indemnity shall
not cover indirect or consequential damages. The Trustee or the Depositor, as
the case may be, shall immediately notify the Master Servicer or the Special
Servicer, as applicable, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans entitling the Trust to indemnification
hereunder, whereupon the Master Servicer or the Special Servicer, as the case
may be, shall assume the defense of such claim (with counsel reasonably
satisfactory to the Trustee or the Depositor) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Master Servicer or the Special Servicer, as
the case may be, shall not affect any rights any of the foregoing Persons may
have to indemnification under this Agreement or otherwise, unless the Master
Servicer's, or the Special Servicer's, as the case may be, defense of such claim
is materially prejudiced thereby.
(d) The Trustee agrees to indemnify the Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Trustee in the performance of its obligations and duties under this Agreement or
by reason of negligent disregard by the Trustee of its duties and obligations
hereunder or by reason of breach of any representations or warranties made
herein; provided that such indemnity shall not cover indirect or consequential
damages. The Master Servicer or the Special Servicer, as the case may be, shall
immediately notify the Trustee if a claim is made by a third party with respect
to this Agreement, whereupon the Trustee shall assume the defense of such claim
(with counsel reasonably satisfactory to the Master Servicer or the Special
Servicer) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Trustee shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Trustee's defense
of such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify the Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided that such indemnity shall not cover indirect or
consequential damages. The Master Servicer or the Special Servicer, as the case
may be, shall immediately notify the Depositor if a claim is made by a third
party with respect to this Agreement, whereupon the Depositor shall assume the
defense of such claim (with counsel reasonably satisfactory to the Master
Servicer or the Special Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
(f) The master servicer, special servicer, depositor and trustee
under the BACM 2007-3 Pooling Agreement, and any of their respective directors,
officers, employees or agents (collectively, the "Non-Serviced Indemnified
Parties"), shall be indemnified by the Trust and held harmless against the
Trust's pro rata share (subject to the related Intercreditor Agreement) of any
and all claims, losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments, and any other costs, liabilities, fees and
expenses incurred in connection with any legal action relating to the JQH Hotel
Portfolio Mortgage Loan under the BACM 2007-3 Pooling Agreement or this
Agreement, reasonably requiring the use of counsel or the incurring of expenses,
other than any losses incurred by reason of any Non-Serviced Indemnified Party's
willful misfeasance, bad faith or negligence in the performance of its duties or
by reason of negligent disregard of its obligations and duties under the BACM
2007-3 Pooling Agreement or the related Intercreditor Agreement. The
indemnification provided in this Section 6.03 shall survive the termination of
this Agreement and the termination or resignation of the Master Servicer, the
Trustee and the Special Servicer.
Section 6.04 Master Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Master Servicer nor the
Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) in the
case of the Master Servicer, upon the appointment of, and the acceptance of such
appointment by, a successor Master Servicer and receipt by the Trustee of
written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates or any class of Companion Loan Securities. Only the Master
Servicer shall be permitted to resign pursuant to clause (b) above. Any such
determination permitting the resignation of the Master Servicer or the Special
Servicer pursuant to clause (a) above shall be evidenced by an Opinion of
Counsel (at the expense of the resigning party) to such effect delivered to the
Trustee and the Directing Certificateholder. No such resignation by the Master
Servicer or the Special Servicer shall become effective until the Trustee or a
successor Master Servicer or successor Special Servicer, as applicable, shall
have assumed the Master Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02. Upon any
termination or resignation of the Master Servicer hereunder, the Master Servicer
shall have the right and opportunity to appoint any successor Master Servicer
with respect to this Section 6.04; provided that such successor Master Servicer
is approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicer and the Special Servicer. The Depositor 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 and the Special
Servicer hereunder or exercise the rights of the Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, the Master Servicer and
the Special Servicer shall not be relieved of any of their respective
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by 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.
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner. The Master Servicer, the Special Servicer or any Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder. The Directing
Certificateholder shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer and
the Master Servicer with respect to Non-Specially Serviced Mortgage Loans as to
which the Master Servicer must obtain the consent or deemed consent of the
Special Servicer, and (3) the Special Servicer with respect to all Mortgage
Loans for which an extension of maturity is being considered by the Special
Servicer or by the Master Servicer subject to consent or deemed consent of the
Special Servicer, and notwithstanding anything herein to the contrary, except as
set forth in, and in any event subject to, Section 3.08(f) and the second and
third paragraphs of this Section 6.07, the Master Servicer or Special Servicer,
as the case may be, shall not be permitted to take any of the following actions
as to which the Directing Certificateholder has objected in writing within ten
(10) Business Days of being notified thereof (provided that if such written
objection has not been received by the Master Servicer or the Special Servicer,
as applicable, within such ten (10) Business Day period, then the Directing
Certificateholder will be deemed to have waived its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs)
of a Mortgage Loan or any extension of the maturity date of any Mortgage
Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable Environmental Laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the borrower or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes (with respect to a
Mortgage Loan with a principal balance greater than $2,500,000) or
franchise changes for which the mortgagee is required to consent or
approve;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves, other than those required
pursuant to the specific terms of the Mortgage Loans with no material
lender discretion (and for the sake of clarity it is understood that any
release of the escrows, reserve accounts or letters of credit held as
performance escrows or reserves for the Mortgage Loans on Exhibit BB shall
require review and consent by the Special Servicer and the Directing
Certificateholder);
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default;
provided that, in the event that the Special Servicer or the Master Servicer (in
the event the Master Servicer is otherwise authorized by this Agreement to take
such action), as applicable, determines that immediate action is necessary to
protect the interests of the Certificateholders (as a collective whole), the
Special Servicer or the Master Servicer, as applicable may take any such action
without waiting for the Directing Certificateholder's response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of the related Companion Holder to advise the Special Servicer with
respect to the related Serviced Whole Loan pursuant to the terms of the related
Intercreditor Agreement, may direct the Special Servicer to take, or to refrain
from taking, such other actions with respect to a Mortgage Loan, as the
Directing Certificateholder may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary, no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
any Mortgage Loan, applicable law, this Agreement or the REMIC Provisions,
including without limitation the Special Servicer's obligation to act in
accordance with the Servicing Standards, or expose the Master Servicer, the
Special Servicer, the Trust Fund or the Trustee to liability, or materially
expand the scope of the Special Servicer's responsibilities hereunder or cause
the Special Servicer to act, or fail to act, in a manner which in the reasonable
judgment of the Special Servicer is not in the best interests of the
Certificateholders.
In the event the Special Servicer or the Master Servicer, as
applicable, determines that a refusal to consent by the Directing
Certificateholder or any advice from the Directing Certificateholder would
otherwise cause the Special Servicer or the Master Servicer, as applicable, to
violate the terms of any Mortgage Loan, applicable law, or the other provisions
of this Agreement, including without limitation, the Servicing Standards, the
Special Servicer or the Master Servicer, as applicable, shall disregard such
refusal to consent or advise and notify the Directing Certificateholder, the
Trustee and the Rating Agencies of its determination, including a reasonably
detailed explanation of the basis therefor. The taking of, or refraining from
taking, any action by the Master Servicer or Special Servicer in accordance with
the direction of or approval of the Directing Certificateholder that does not
violate any law or the Servicing Standards or the other provisions of this
Agreement, will not result in any liability on the part of the Master Servicer
or the Special Servicer.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action, or for errors in judgment; provided, however, the
Directing Certificateholder shall not be protected against any liability to a
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates including the Holders of the Controlling Class, over
other Classes of the Certificates, and that the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
some Classes of the Certificates, that the Directing Certificateholder may act
solely in the interests of the Holders of the Controlling Class, that the
Directing Certificateholder does not have any duties or liability to the Holders
of any Class of Certificates, other than the Controlling Class, that the
Directing Certificateholder shall not be liable to any Certificateholder, by
reason of its having acted solely in the interests of the Holders of the
Controlling Class, and that the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
Section 6.08 Certain Matters with Respect to the JQH Hotel Portfolio
Whole Loan.
(a) In connection with the securitization of the JQH Hotel Portfolio
Pari Passu Companion Loan, after the JQH Hotel Portfolio Servicing Transfer
Event, then the BACM 2007-3 Master Servicer (or if the JQH Hotel Portfolio Whole
Loan is a specially serviced loan under the BACM 2007-3 Pooling Agreement, the
BACM 2007-3 Special Servicer) shall service and administer the JQH Hotel
Portfolio Whole Loan in a manner consistent with the JQH Hotel Portfolio
Intercreditor Agreement and the REMIC Provisions, and the Master Servicer shall
have no master servicing obligations with respect thereto;
(b) The Master Servicer and the Special Servicer each hereby agree
that prior to the JQH Hotel Portfolio Servicing Transfer Event, if required
pursuant to the JQH Hotel Portfolio Intercreditor Agreement, it shall consult
with, provide required notices and information to, obtain the consent of,
receive objection(s) from and/or take advice and/or direction from, the JQH
Hotel Portfolio Controlling Holder and the Directing Certificateholder as and to
the extent required by the JQH Hotel Portfolio Intercreditor Agreement;
(c) Notwithstanding anything contained in this Agreement to the
contrary, no advice, direction or objection from or by the JQH Hotel Portfolio
Controlling Holder or any of its respective designees may (and the Master
Servicer and the Special Servicer shall ignore and act without regard to any
such advice, direction or objection that the Master Servicer or the Special
Servicer, as applicable, has determined, in its reasonable, good faith judgment,
will) (A) require or cause the Master Servicer or the Special Servicer, as
applicable, to violate the terms of the related Mortgage Loan documents,
applicable law or any provision of the JQH Hotel Portfolio Intercreditor
Agreement, including the Master Servicer's obligation or the Special Servicer's
obligation to act in accordance with the Servicing Standard and to maintain the
REMIC status of any REMIC or (B) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions. In
addition, if the Master Servicer or Special Servicer, as applicable, determines
in accordance with the Servicing Standard that immediate action is necessary to
protect the interests of the holders of the JQH Hotel Portfolio Notes (as a
collective whole), the applicable servicer may take any such action without
waiting for a response from either holder, or such holder's designee, as
applicable;
(d) In the event the JQH Hotel Portfolio Pari Passu Companion Loan
Holder is responsible for its proportionate share of any Nonrecoverable Advances
(and advance interest thereon) or other fee or expense pursuant to JQH Hotel
Portfolio Intercreditor Agreement, and in the event that the funds received with
respect to the JQH Hotel Portfolio Whole Loan are insufficient to cover such
amounts, the Master Servicer shall reimburse itself, the Trustee, and Special
Servicer, as applicable, for its proportionate share from the Trust Fund's
Certificate Account in accordance with Section 3.05, and the JQH Hotel Portfolio
Pari Passu Companion Loan Holder will be required to reimburse the Trust Fund
for its proportionate share of such amounts. After the JQH Hotel Portfolio
Servicing Transfer Event, in the event the Trust Fund (as holder of the JQH
Hotel Portfolio Mortgage Loan) is responsible for its proportionate share of any
Nonrecoverable Advances (as defined in the BACM 2007-3 Pooling Agreement) (and
advance interest thereon) or other fee or expense pursuant to the JQH Hotel
Portfolio Intercreditor Agreement or the BACM 2007-3 Pooling Agreement, and in
the event that the funds received with respect to the JQH Hotel Portfolio Whole
Loan are insufficient to cover such amounts, then the Master Servicer will be
required to reimburse the BACM 2007-3 Trust Fund for its proportionate share out
of general funds in the Trust Fund's Certificate Account in accordance with
Section 3.05.
(e) Each of the Trustee, Master Servicer and the Special Servicer
shall be indemnified against any claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses, incurred in connection with this Agreement that relate solely to
its servicing of the JQH Hotel Portfolio Whole Loan, and the JQH Hotel Portfolio
Pari Passu Companion Loan Holder will be required to reimburse the Master
Servicer, the Special Servicer or the Trustee, as applicable, for its
proportionate share of such amounts out of funds received with respect to the
JQH Hotel Portfolio Whole Loan, and if such funds are insufficient to cover such
amounts, out of its own funds. After the JQH Hotel Portfolio Servicing Transfer
Event, each of the BACM 2007-3 Trustee, BACM 2007-3 Master Servicer and the BACM
2007-3 Special Servicer shall be indemnified against any claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses, incurred in connection with the
BACM 2007-3 Pooling Agreement that relate solely to its servicing of the JQH
Hotel Portfolio Whole Loan, and the Master Servicer will be required to
reimburse the BACM 2007-3 Master Servicer, the BACM 2007-3 Special Servicer or
the BACM 2007-3 Trustee, as applicable, for its proportionate share of such
amounts out of funds received with respect to the JQH Hotel Portfolio Mortgage
Loan, and if such funds are insufficient to cover such amounts, out of general
funds in the Trust Fund's Certificate Account in accordance with Section 3.05.
(f) The Master Servicer agrees that it shall remit all payments
received (or advanced, if applicable) with respect to the JQH Hotel Portfolio
Pari Passu Companion Loan, net of its Servicing Fee and any other applicable
fees and reimbursements payable to the Master Servicer, the Special Servicer and
the Trustee, to the JQH Hotel Portfolio Pari Passu Companion Loan Holder within
one Business Day of receipt.
(g) Each of the Master Servicer and the Special Servicer agrees to
deliver the JQH Hotel Portfolio Pari Passu Companion Loan Holder all reports
required to be delivered by the Master Servicer or Special Servicer to the
Trustee pursuant to the terms of this Agreement on the date such reports are
required to be delivered to the Trustee, including such information in the
Master Servicer's possession as is reasonably necessary for the BACM 2007-3
Master Servicer to determine the recoverability of P&I Advances.
(h) Each of the Master Servicer and the Special Servicer
acknowledges that upon the securitization of JQH Hotel Portfolio Pari Passu
Companion Loan, the BACM 2007-3 Trustee will be the owner of the JQH Hotel
Portfolio Pari Passu Companion Loan and that, pursuant to the BACM 2007-3
Pooling Agreement, the BACM 2007-3 Master Servicer will be entitled to enforce
the rights of the Trustee under the BACM 2007-3 Pooling Agreement with respect
to the JQH Hotel Portfolio Mortgage Loan.
(i) If there are any conflicts between this Section 6.8 and any of
the Mortgage Loan documents relating to the JQH Hotel Portfolio Whole Loan or
between this Section 6.8 and the JQH Hotel Portfolio Intercreditor Agreement,
then such Mortgage Loan documents or such JQH Hotel Portfolio Intercreditor
Agreement shall control. The parties hereto recognize and acknowledge the
respective rights of the JQH Hotel Portfolio Pari Passu Companion Loan Holder
under the JQH Hotel Portfolio Intercreditor Agreement.
(j) In connection with the securitization of the JQH Hotel Portfolio
Pari Passu Companion Loan, after the JQH Hotel Portfolio Servicing Transfer
Event, the Master Servicer and Special Servicer shall be required to deliver the
reports, certifications and other materials delivered by the Master Servicer or
the Special Servicer pursuant to Article XI as the parties to the securitization
of the JQH Hotel Portfolio Pari Passu Companion Loan may require in order to
comply with their obligations under the BACM 2007-3 Pooling Agreement, the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, subject to the terms and conditions of the JQH Hotel Portfolio
Intercreditor Agreement, including without limitation, that (A) the JQH Hotel
Portfolio Pari Passu Companion Loan Holder shall pay or cause to be paid any and
all reasonable out-of-pocket expenses incurred by the Master Servicer in
connection with the provision and/or review of such disclosure, opinion of
counsel and indemnification agreement; (B) the JQH Hotel Portfolio Pari Passu
Companion Loan Holder shall have invoked its rights under this sentence by means
of a notice delivered to the Master Servicer within a reasonable period prior to
the date when the relevant securities to be issued in the securitization of the
JQH Hotel Portfolio Pari Passu Companion Loan are first offered publicly; and
(C) the Master Servicer shall not be required to provide any such disclosure,
opinion of counsel or indemnification agreement unless the JQH Hotel Portfolio
Pari Passu Companion Loan Holder constitutes 20% or more of the cut-off date
balance of the BACM 2007-3 securitization and shall not be required to address
items other than Items under Regulation AB covered by the related Master
Servicer Indemnification Agreement or Special Servicer Indemnification
Agreement.
(k) Each of the BACM 2007-3 Trustee, BACM 2007-3 Master Servicer and
BACM 2007-3 Special Servicer shall be a third party beneficiary of this
Agreement with respect to all provisions herein expressly relating to
compensation, reimbursement or indemnification of such trustee, master servicer
or special servicer, as the case may be, and the provisions regarding
coordination of Advances.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination. (a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make any deposit
required to be made by that Master Servicer to the Certificate Account on
the day and by the time such deposit is required to be made under the
terms of this Agreement, which failure is not remedied within one Business
Day or (B) any failure by the Master Servicer to deposit into, or remit to
the Trustee, for deposit into, any Distribution Account or any failure of
the Master Servicer to deposit into the related Companion Distribution
Account any amount required to be so deposited or remitted, which failure
in either case is not remedied by 11:00 a.m. (New York City time) on the
relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within two Business Days after such deposit is required to be
made or to remit to the Master Servicer for deposit into the Certificate
Account or to deposit into, or to remit to the Trustee for deposit into,
the Lower-Tier Distribution Account any amount required to be so deposited
or remitted by the Special Servicer pursuant to, and at the time specified
by, the terms of this Agreement; or
(iii) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (five Business Days in the case of the
Master Servicer's or Special Servicer's obligations under Article XI
hereof required to fulfill Exchange Act reporting requirements during any
period that the Trust is subject to the reporting requirements of the
Exchange Act (and 30 days in the case of the Master Servicer and Special
Servicer during any period that the Trust is not subject to the reporting
requirements of the Exchange Act), 15 days in the case of the Master
Servicer's failure to make a Servicing Advance or 15 days in the case of a
failure to pay the premium for any insurance policy required to be
maintained hereunder) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A) to
the Master Servicer or the Special Servicer, as the case may be, by any
other party hereto, or (B) to the Master Servicer or the Special Servicer,
as the case may be, with a copy to each other party to this Agreement, by
the Holders of Certificates evidencing Percentage Interests aggregating
not less than 25%, or with respect to a Serviced Mortgage Loan, by the
holder of the related Companion Loan; provided, however, if such failure
is capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(iv) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders or Companion Holders
(excluding the holder of any JQH Hotel Portfolio Pari Passu Companion Loan
after the JQH Hotel Portfolio Servicing Transfer Event) and which
continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been
given to the Master Servicer or the Special Servicer, as the case may be,
by the Depositor or the Trustee, or to the Master Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25% or, solely
as it relates to the servicing of a Serviced Whole Loan, by the related
Companion Holders; provided, however, if such breach is capable of being
cured and the Master Servicer or Special Servicer, as the case may be, is
diligently pursuing such cure, such 30-day period will be extended an
additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Master Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) Moody's places its ratings of any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing or special servicing concerns, as applicable, as the sole
or a material factor in such rating action (and such "watch" status is not
rescinded within 60 days (or such longer period as would not, as confirmed
by such Rating Agency in writing, result in a qualification, downgrade or
withdrawal of one or more ratings assigned by such Rating Agency to the
Certificates); or
(ix) Moody's downgrades the then current ratings of any Class of
Certificates, citing servicing or special servicing concerns, as
applicable, as the sole or a material factor in such downgrade; or
(x) the Master Servicer or the Special Servicer is no longer listed
on S&P's Select Servicer List as a U.S. Commercial Mortgage Master
Servicer or a U.S. Commercial Mortgage Special Servicer, as applicable,
and is not reinstated to S&P's Select Servicer List within 60 days of such
removal.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction (of the Directing
Certificateholder) or the Holders of Certificates entitled to at least 51% of
the Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of the Master Servicer or the Trustee with respect to a termination
of the Special Servicer pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and Special Servicer each agree that if it is
terminated pursuant to this Section 7.01(b), it shall promptly (and in any event
no later than 20 Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by it
to enable it to assume the Master Servicer's or the Special Servicer's, as the
case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Master Servicer's or the Special Servicer's, as
the case may be, responsibilities and rights (subject to Section 3.11 and
Section 6.03) hereunder, including, without limitation, the transfer within five
Business Days to the Trustee or the Master Servicer, as applicable, for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Master Servicer to the applicable Certificate Account
or any Servicing Account (if it is the Defaulting Party) or by the Special
Servicer to the REO Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans or any REO Property (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the date
of such termination, whether in respect of Advances (in the case of the Special
Servicer or the Master Servicer) or otherwise, and it and its Affiliates and the
directors, managers, officers, members, employees and agents of it and its
Affiliates shall continue to be entitled to the benefits of Section 3.11 and
Section 6.03 notwithstanding any such termination).
(c) If the Master Servicer receives notice of termination solely due
to an Event of Default under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(viii) through (xi) and if the Master Servicer to be
terminated pursuant to Section 7.01(b) provides the Trustee with the appropriate
"request for proposal" materials within five (5) Business Days following such
termination notice, then the Master Servicer shall continue to service as Master
Servicer hereunder until a successor Master Servicer is selected in accordance
with this Section 7.01(c). Upon receipt of the "request for proposal" materials,
Trustee shall promptly thereafter (using such "request for proposal" materials
provided by the Master Servicer pursuant to Section 7.01(b)) solicit good faith
bids for the rights to service the Mortgage Loans and Companion Loans under this
Agreement from at least three (3) Persons qualified to act as Master Servicer
hereunder in accordance with Sections 6.02 and 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the Master Servicer shall
supply the Trustee with the names of Persons from whom to solicit such bids; and
provided, further, the Trustee shall not be responsible if less than three (3)
or no Qualified Bidders submit bids for the right to service the Mortgage Loans
and Companion Loans under this Agreement. The bid proposal shall require any
Successful Bidder (as defined below), as a condition of such bid, to enter into
this Agreement as successor Master Servicer, and to agree to be bound by the
terms hereof, including but not limited to Section 3.11, within 45 days after
the notice of termination of the Master Servicer. The materials provided to the
Trustee shall provide for soliciting bids: (i) on the basis of such successor
Master Servicer retaining all Sub-Servicers to continue the primary servicing of
the Mortgage Loans and Companion Loans pursuant to the terms of the respective
Sub-Servicing Agreements (each, a "Servicing-Retained Bid"); and (ii) on the
basis of terminating each Sub-Servicing Agreement and Sub-Servicer that it is
permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash
Servicing-Released Bid) (the "Successful Bidder") to act as successor Master
Servicer hereunder; provided, however, if the Trustee does not receive
confirmation in writing by each Rating Agency that the appointment of such
Successful Bidder as successor Master Servicer will not result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any Class of Certificates or class of Companion Loan Securities within
10 days after the selection of such Successful Bidder, then the Trustee shall
repeat the bid process described above (but subject to the above-described
45-day time period) until such confirmation is obtained. The Trustee shall
direct the Successful Bidder to enter into this Agreement as successor Master
Servicer pursuant to the terms hereof no later than 45 days after notice of the
termination of the Master Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the Master Servicer to be terminated
pursuant to Section 7.01(b), the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The Master Servicer to be terminated pursuant to Section 7.01(b)
shall be responsible for all out-of-pocket expenses incurred in connection with
the attempt to sell its rights to service the Mortgage Loans, which expenses are
not reimbursed to the party that incurred such expenses pursuant to the
preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
Master Servicer to be terminated pursuant to Section 7.01(b) shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
Notwithstanding Section 7.01(b) and Section 7.04, if (i) an Event of
Default on the part of the Master Servicer remains unremedied and materially and
adversely affects only a Xxxxxxxx Xxxxx Pari Passu Companion Loan, (ii) the
Master Servicer (as Companion Paying Agent) has all necessary, correct
information to enable it to make any payment on a Xxxxxxxx Xxxxx Pari Passu
Companion Loan, but fails to make such payment when required under the terms of
this Agreement, which failure is not cured within one Business Day or (iii) any
qualification, downgrade or withdrawal by any Rating Agency of any class of
Xxxxxxxx Xxxxx Companion Loan Securities occurs solely as a result of an action
of the Master Servicer, then the Master Servicer may not be terminated but the
holder of the related Xxxxxxxx Xxxxx Pari Passu Companion Loan, or the related
trustee under the Other Pooling and Servicing Agreement, acting at the direction
of the related controlling class representative for that securitization, shall
be entitled to direct the Trustee to require the Master Servicer to appoint a
sub-servicer solely with respect to the related Serviced Whole Loan (or if the
related Serviced Whole Loan is currently being sub-serviced, to replace the
current sub-servicer, but only if such original sub-servicer is in default under
the related sub-servicing agreement). The appointment (or replacement) of a
sub-servicer with respect to the Xxxxxxxx Xxxxx Whole Loan shall in any event be
subject to confirmation from each rating agency that such appointment would not
result in the downgrade, withdrawal or qualification of the then current ratings
on any class of outstanding Certificates and any class of Companion Loan
Securities. A sub-servicer for the related Serviced Whole Loan shall be selected
by the Directing Certificateholder and the Xxxxxxxx Xxxxx Pari Passu Companion
Loan Holder (or its designee); provided that if the Directing Certificateholder
and the Xxxxxxxx Xxxxx Pari Passu Companion Loan Holder or the Xxxxxxxx Xxxxx
Controlling Holder, as applicable, are unable to agree on a sub-servicer within
45 days after the date on which the Trustee was directed to appoint a
sub-servicer or replace the current sub-servicer, such sub-servicer shall be
selected by the Directing Certificateholder. Any such sub-servicer under this
paragraph shall meet the eligibility requirements of Section 7.02 and the
eligibility requirements of the related Other Pooling and Servicing Agreement.
Any appointment of a sub-servicer in accordance with this paragraph shall be
subject to the receipt of a Rating Agency confirmation with respect to the
Certificates and the Companion Loan Securities. In addition, if the Trustee
appoints a sub-servicer solely with respect to the related Serviced Whole Loan,
the Master Servicer shall not be liable for any losses incurred due to the
actions of such sub-servicer.
Notwithstanding Section 7.01(b) and Section 7.04, if (i) an Event of
Default on the part of the Master Servicer remains unremedied and materially and
adversely affects only the ChampionsGate Pari Passu Companion Loan, (ii) the
Master Servicer (as Companion Paying Agent) has all necessary, correct
information to enable it to make any payment on the ChampionsGate Pari Passu
Companion Loan, but fails to make such payment when required under the terms of
this Agreement, which failure is not cured within one Business Day or (iii) any
qualification, downgrade or withdrawal by any Rating Agency of any class of
ChampionsGate Companion Loan Securities occurs solely as a result of an action
of the Master Servicer, then the Master Servicer may not be terminated but the
holder of the related ChampionsGate Pari Passu Companion Loan, as applicable, or
the related trustee under the Other Pooling and Servicing Agreement, acting at
the direction of the related controlling class representative for that
securitization, shall be entitled to direct the Trustee to require the Master
Servicer to appoint a sub-servicer solely with respect to the related Serviced
Whole Loan (or if the related Serviced Whole Loan is currently being
sub-serviced, to replace the current sub-servicer, but only if such original
sub-servicer is in default under the related sub-servicing agreement). The
appointment (or replacement) of a sub-servicer with respect to the ChampionsGate
Whole Loan shall in any event be subject to confirmation from each rating agency
that such appointment would not result in the downgrade, withdrawal or
qualification of the then current ratings on any class of outstanding
Certificates and any class of Companion Loan Securities. A sub-servicer for the
related Serviced Whole Loan shall be selected by the Directing Certificateholder
and the ChampionsGate Pari Passu Companion Loan Holder (or its designee);
provided that if the Directing Certificateholder and the ChampionsGate Pari
Passu Companion Loan Holder (or its designee) are unable to agree on a
sub-servicer within 45 days after the date on which the Trustee was directed to
appoint a sub-servicer or replace the current sub-servicer, such sub-servicer
shall be selected by the Directing Certificateholder. Any such sub-servicer
under this paragraph shall meet the eligibility requirements of Section 7.02 and
the eligibility requirements of the related Other Pooling and Servicing
Agreement. Any appointment of a sub-servicer in accordance with this paragraph
shall be subject to the receipt of a Rating Agency confirmation with respect to
the Certificates and the Companion Loan Securities. In addition, if the Trustee
appoints a sub-servicer solely with respect to the related Serviced Whole Loan,
the Master Servicer shall not be liable for any losses incurred due to the
actions of such sub-servicer.
Notwithstanding Section 7.01(b) and Section 7.04, if (i) an Event of
Default on the part of the Master Servicer remains unremedied and materially and
adversely affects only a Carespring Portfolio Pari Passu Companion Loan, (ii)
the Master Servicer (as Companion Paying Agent) has all necessary, correct
information to enable it to make any payment on a Carespring Portfolio Pari
Passu Companion Loan, but fails to make such payment when required under the
terms of this Agreement, which failure is not cured within one Business Day or
(iii) any qualification, downgrade or withdrawal by any Rating Agency of any
class of Carespring Portfolio Companion Loan Securities occurs solely as a
result of an action of the Master Servicer, then the Master Servicer may not be
terminated but the holder of the related Carespring Portfolio Pari Passu
Companion Loan, as applicable, or the related trustee under the Other Pooling
and Servicing Agreement, acting at the direction of the related controlling
class representative for that securitization, shall be entitled to direct the
Trustee to require the Master Servicer to appoint a sub-servicer solely with
respect to the related Serviced Whole Loan (or if the related Serviced Whole
Loan is currently being sub-serviced, to replace the current sub-servicer, but
only if such original sub-servicer is in default under the related sub-servicing
agreement). The appointment (or replacement) of a sub-servicer with respect to
the Carespring Portfolio Whole Loan shall in any event be subject to
confirmation from each rating agency that such appointment would not result in
the downgrade, withdrawal or qualification of the then current ratings on any
class of outstanding Certificates and any class of Companion Loan Securities. A
sub-servicer for the related Serviced Whole Loan shall be selected by the
Directing Certificateholder and the Carespring Portfolio Pari Passu Companion
Loan Holder (or its designee); provided that if the Directing Certificateholder
and the Carespring Portfolio Pari Passu Companion Loan Holder (or its designee)
are unable to agree on a sub-servicer within 45 days after the date on which the
Trustee was directed to appoint a sub-servicer or replace the current
sub-servicer, such sub-servicer shall be selected by the Directing
Certificateholder. Any such sub-servicer under this paragraph shall meet the
eligibility requirements of Section 7.02 and the eligibility requirements of the
related Other Pooling and Servicing Agreement. Any appointment of a sub-servicer
in accordance with this paragraph shall be subject to the receipt of a Rating
Agency confirmation with respect to the Certificates and the Companion Loan
Securities. In addition, if the Trustee appoints a sub-servicer solely with
respect to the related Serviced Whole Loan, the Master Servicer shall not be
liable for any losses incurred due to the actions of such sub-servicer.
Notwithstanding Section 7.01(b) and Section 7.04, prior to the JQH
Hotel Portfolio Servicing Transfer Event, if (i) an Event of Default on the part
of the Master Servicer remains unremedied and materially and adversely affects
only the JQH Hotel Portfolio Pari Passu Companion Loan, (ii) the Master Servicer
(as Companion Paying Agent) has all necessary, correct information to enable it
to make any payment on the JQH Hotel Portfolio Pari Passu Companion Loan, but
fails to make such payment when required under the terms of this Agreement,
which failure is not cured within one Business Day or (iii) any qualification,
downgrade or withdrawal by any Rating Agency of any class of JQH Hotel Portfolio
Companion Loan Securities occurs solely as a result of an action of the Master
Servicer, then the Master Servicer may not be terminated but the JQH Hotel
Portfolio Pari Passu Companion Loan Holder shall be entitled to direct the
Trustee to require the Master Servicer to appoint a sub-servicer solely with
respect to the related Serviced Whole Loan (or if the related Serviced Whole
Loan is currently being sub-serviced, to replace the current sub-servicer, but
only if such original sub-servicer is in default under the related sub-servicing
agreement). The appointment (or replacement) of a sub-servicer with respect to
the JQH Hotel Portfolio Whole Loan shall in any event be subject to confirmation
from each rating agency that such appointment would not result in the downgrade,
withdrawal or qualification of the then current ratings on any class of
outstanding Certificates and any class of Companion Loan Securities. A
sub-servicer for the related Serviced Whole Loan shall be selected by the
Directing Certificateholder and the JQH Hotel Portfolio Pari Passu Companion
Loan Holder (or its designee); provided that if the Directing Certificateholder
and the JQH Hotel Portfolio Pari Passu Companion Loan Holder (or its designee)
are unable to agree on a sub-servicer within 45 days after the date on which the
Trustee was directed to appoint a sub-servicer or replace the current
sub-servicer, such sub-servicer shall be selected by the Directing
Certificateholder. Any such sub-servicer under this paragraph shall meet the
eligibility requirements of Section 7.02 and the eligibility requirements of the
related Other Pooling and Servicing Agreement. Any appointment of a sub-servicer
in accordance with this paragraph shall be subject to the receipt of a Rating
Agency confirmation with respect to the Certificates and the Companion Loan
Securities. In addition, if the Trustee appoints a sub-servicer solely with
respect to the related Serviced Whole Loan, the Master Servicer shall not be
liable for any losses incurred due to the actions of such sub-servicer.
Notwithstanding Section 7.01(b) and Section 7.04, if (i) an Event of
Default on the part of the Master Servicer remains unremedied and materially and
adversely affects only a Xxxxx Portfolio Pari Passu Companion Loan, (ii) the
Master Servicer (as Companion Paying Agent) has all necessary, correct
information to enable it to make any payment on a Xxxxx Portfolio Pari Passu
Companion Loan, but fails to make such payment when required under the terms of
this Agreement, which failure is not cured within one Business Day or (iii) any
qualification, downgrade or withdrawal by any Rating Agency of any class of
Xxxxx Portfolio Companion Loan Securities occurs solely as a result of an action
of the Master Servicer, then the Master Servicer may not be terminated but the
holder of the related Xxxxx Portfolio Pari Passu Companion Loan, as applicable,
or the related trustee under the Other Pooling and Servicing Agreement, acting
at the direction of the related controlling class representative for that
securitization, shall be entitled to direct the Trustee to require the Master
Servicer to appoint a sub-servicer solely with respect to the related Serviced
Whole Loan (or if the related Serviced Whole Loan is currently being
sub-serviced, to replace the current sub-servicer, but only if such original
sub-servicer is in default under the related sub-servicing agreement). The
appointment (or replacement) of a sub-servicer with respect to a Xxxxx Portfolio
Whole Loan shall in any event be subject to confirmation from each rating agency
that such appointment would not result in the downgrade, withdrawal or
qualification of the then current ratings on any class of outstanding
Certificates and any class of Companion Loan Securities. A sub-servicer for the
related Serviced Whole Loan shall be selected by the Directing Certificateholder
and the applicable Xxxxx Portfolio Pari Passu Companion Loan Holder; provided
that if the Directing Certificateholder and the applicable Xxxxx Portfolio Pari
Passu Companion Loan Holder are unable to agree on a sub-servicer within 45 days
after the date on which the Trustee was directed to appoint a sub-servicer or
replace the current sub-servicer, such sub-servicer shall be selected by the
Directing Certificateholder. Any such sub-servicer under this paragraph shall
meet the eligibility requirements of Section 7.02 and the eligibility
requirements of the related Other Pooling and Servicing Agreement. Any
appointment of a sub-servicer in accordance with this paragraph shall be subject
to the receipt of a Rating Agency confirmation with respect to the Certificates
and the Companion Loan Securities. In addition, if the Trustee appoints a
sub-servicer solely with respect to the related Serviced Whole Loan, the Master
Servicer shall not be liable for any losses incurred due to the actions of such
sub-servicer.
(d) Subject to the rights of the related Companion Holders pursuant
to the related Intercreditor Agreement, the Directing Certificateholder shall be
entitled to terminate the rights (subject to Section 3.11 and Section 6.03(d))
and obligations of the Special Servicer under this Agreement, with or without
cause, upon ten (10) Business Days' notice to the Special Servicer, the Master
Servicer and the Trustee; such termination to be effective upon the appointment
of a successor Special Servicer meeting the requirements of this Section
7.01(d). Upon a termination or resignation of such Special Servicer, the
Directing Certificateholder shall appoint a successor Special Servicer;
provided, however, (i) such successor will meet the requirements set forth in
Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated or, insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency, in a similar
event with respect to such class of Companion Loan Securities.
Notwithstanding the foregoing or any other provision of this Agreement but
without limitation of the rights of the Lembi Portfolio AB Companion Loan
pursuant to the Lembi Portfolio Intercreditor Agreement, or waiver of the
requirements contained therein relating thereto, with respect to the Lembi
Portfolio Whole Loan, it is acknowledged and agreed that the Lembi Portfolio
Controlling Holder shall have the right to remove the Special Servicer for the
Lembi Portfolio Whole Loan, so long as (i) such successor will meet the
requirements set forth in Section 7.02 and (ii) as evidenced in writing by each
of the Rating Agencies, the proposed successor of such Special Servicer will
not, in and of itself, result in a downgrading, withdrawal or qualification of
the then-current ratings provided by the Rating Agencies in respect to any Class
of then outstanding Certificates that is rated or, insofar as there is then
outstanding any class of Companion Loan Securities that is then rated by such
Rating Agency, in a similar event with respect to such class of Companion Loan
Securities.
Notwithstanding the foregoing or any other provision of this Agreement but
without limitation of the rights of the Stadium Towers Companion Loan pursuant
to the Stadium Towers Intercreditor Agreement, or waiver of the requirements
contained therein relating thereto, with respect to the Stadium Towers Whole
Loan, it is acknowledged and agreed that the Stadium Towers Controlling Holder
shall have the right to remove the Special Servicer for the Stadium Towers Whole
Loan, so long as (i) such successor will meet the requirements set forth in
Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated or, insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency, in a similar
event with respect to such class of Companion Loan Securities.
Notwithstanding the foregoing or any other provision of this Agreement but
without limitation of the rights of the 000 Xxxxx Xxxxxx XX Companion Loan
pursuant to the 000 Xxxxx Xxxxxx Intercreditor Agreement, or waiver of the
requirements contained therein relating thereto, with respect to the 500 Xxxxx
Center Whole Loan, it is acknowledged and agreed that the 500 Xxxxx Controlling
Holder shall have the right to remove the Special Servicer for the 500 Xxxxx
Whole Loan, so long as (i) such successor will meet the requirements set forth
in Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated or, insofar as there is then outstanding any class of
Companion Loan Securities that is then rated by such Rating Agency, in a similar
event with respect to such class of Companion Loan Securities.
Notwithstanding the foregoing or any other provision of this Agreement but
without limitation of the rights of the Edentree Apartment Village AB Companion
Loan pursuant to the Edentree Apartment Village Intercreditor Agreement, or
waiver of the requirements contained therein relating thereto, with respect to
the Edentree Apartment Village Whole Loan, it is acknowledged and agreed that
the Edentree Apartment Village Controlling Holder shall have the right to remove
the Special Servicer for the Edentree Apartment Village Whole Loan, so long as
(i) such successor will meet the requirements set forth in Section 7.02 and (ii)
as evidenced in writing by each of the Rating Agencies, the proposed successor
of such Special Servicer will not, in and of itself, result in a downgrading,
withdrawal or qualification of the then-current ratings provided by the Rating
Agencies in respect to any Class of then outstanding Certificates that is rated
or, insofar as there is then outstanding any class of Companion Loan Securities
that is then rated by such Rating Agency, in a similar event with respect to
such class of Companion Loan Securities.
Notwithstanding the foregoing or any other provision of this Agreement but
without limitation of the rights of the Squire Hill Apartments AB Companion Loan
pursuant to the Squire Hill Apartments Intercreditor Agreement, or waiver of the
requirements contained therein relating thereto, with respect to the Squire Hill
Apartments Whole Loan, it is acknowledged and agreed that the Squire Hill
Apartments Controlling Holder shall have the right to remove the Special
Servicer for the Squire Hill Apartments Whole Loan, so long as (i) such
successor will meet the requirements set forth in Section 7.02 and (ii) as
evidenced in writing by each of the Rating Agencies, the proposed successor of
such Special Servicer will not, in and of itself, result in a downgrading,
withdrawal or qualification of the then-current ratings provided by the Rating
Agencies in respect to any Class of then outstanding Certificates that is rated
or, insofar as there is then outstanding any class of Companion Loan Securities
that is then rated by such Rating Agency, in a similar event with respect to
such class of Companion Loan Securities.
Notwithstanding the foregoing or any other provision of this Agreement but
without limitation of the rights of the Foothill Xxxx Apartments AB Companion
Loan pursuant to the Foothill Xxxx Apartments Intercreditor Agreement, or waiver
of the requirements contained therein relating thereto, with respect to the
Foothill Xxxx Apartments Whole Loan, it is acknowledged and agreed that the
Foothill Xxxx Apartments Controlling Holder shall have the right to remove the
Special Servicer for the Foothill Xxxx Apartments Whole Loan, so long as (i)
such successor will meet the requirements set forth in Section 7.02 and (ii) as
evidenced in writing by each of the Rating Agencies, the proposed successor of
such Special Servicer will not, in and of itself, result in a downgrading,
withdrawal or qualification of the then-current ratings provided by the Rating
Agencies in respect to any Class of then outstanding Certificates that is rated
or, insofar as there is then outstanding any class of Companion Loan Securities
that is then rated by such Rating Agency, in a similar event with respect to
such class of Companion Loan Securities.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to Section 7.01(d). All costs
and expenses of any such termination made without cause shall be paid by the
Holders of the Controlling Class or related Companion Loan Holder.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(b), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the Master
Servicer or Special Servicer, as the case may be, until such successor is
appointed by the Directing Certificateholder as provided in Section 7.01(d), as
applicable, in all respects in its capacity as the Master Servicer or Special
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to, and have the benefit of, all of the rights,
(subject to Section 3.11 and Section 6.03) benefits, responsibilities, duties,
liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of the Master Servicer or Special
Servicer by the terms and provisions hereof; provided, however, any failure to
perform such duties or responsibilities caused by the terminated party's failure
under Section 7.01 to provide information or moneys required hereunder shall not
be considered a default by such successor hereunder. The appointment of a
successor Master Servicer shall not affect any liability of the predecessor
Master Servicer which may have arisen prior to its termination as Master
Servicer, and the appointment of a successor Special Servicer shall not affect
any liability of the predecessor Special Servicer which may have arisen prior to
its termination as Special Servicer. The Trustee, in its capacity as successor
to the Master Servicer or the Special Servicer, as the case may be, shall not be
liable for any of the representations and warranties of the Master Servicer or
the Special Servicer, respectively, herein or in any related document or
agreement, for any acts or omissions of the Master Servicer or Special Servicer
or for any losses incurred by the Master Servicer pursuant to Section 3.06
hereunder, nor shall the Trustee be required to purchase any Mortgage Loan
hereunder solely as a result of its obligations as successor Master Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Master Servicer shall be entitled to the
Servicing Fees and all fees relating to the Mortgage Loans or Companion Loans
(to the extent permitted in the related Intercreditor Agreements) which the
Master Servicer would have been entitled to if the Master Servicer had continued
to act hereunder, including but not limited to any income or other benefit from
any Permitted Investment pursuant to Section 3.06, and subject to Section 3.11,
the Trustee as successor to the Special Servicer shall be entitled to the
Special Servicing Fees to which the Special Servicer would have been entitled if
the Special Servicer had continued to act hereunder. Should the Trustee succeed
to the capacity of the Master Servicer or the Special Servicer, as the case may
be, the Trustee shall be afforded the same standard of care and liability as the
Master Servicer or the Special Servicer, as applicable, hereunder
notwithstanding anything in Section 8.01 to the contrary, but only with respect
to actions taken by it in its role as successor Master Servicer or successor
Special Servicer, as the case may be, and not with respect to its role as
Trustee hereunder. Notwithstanding the above, the Trustee may, if it shall be
unwilling to act as successor to the Master Servicer or the Special Servicer, as
applicable, or shall, if it is unable to so act, or if the Trustee is not
approved as a servicer by each Rating Agency, or if the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights so request in writing to the Trustee, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution which meets the criteria set forth in Section 6.04
and otherwise herein, as the successor to the Master Servicer or the Special
Servicer, as applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or Special
Servicer hereunder. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption in writing by
the successor to the Master Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter and
upon Rating Agency confirmation with respect to the Certificates and the
Companion Loan Securities, and which appointment has been approved by the
Directing Certificateholder, such approval not to be unreasonably withheld.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, unless the Trustee shall be prohibited by law from so
acting, the Trustee shall act in such capacity as herein above provided. In
connection with such appointment and assumption of a successor to the Master
Servicer or Special Servicer as described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided, however, no such
compensation with respect to a successor Master Servicer or successor Special
Servicer, as the case may be, shall be in excess of that permitted the
terminated Master Servicer or Special Servicer, as the case may be, hereunder.
The Trustee, the Master Servicer or the Special Servicer (whichever is not the
terminated party) and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. Any
costs and expenses associated with the transfer of the servicing function (other
than with respect to a termination without cause) under this Agreement shall be
borne by the predecessor master servicer or special servicer, as applicable.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of the Master Servicer or the Special Servicer pursuant to Section
6.04, any termination of the Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer or the
Special Servicer pursuant to Section 7.02, the Trustee shall give prompt written
notice thereof to Certificateholders at their respective addresses appearing in
the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders (and, if a Serviced Whole Loan is affected, the related
Companion Holder) notice of such occurrence, unless such default shall have been
cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 66(2)/3% of the Voting Rights allocated to
each Class of Certificates affected by any Event of Default hereunder may waive
such Event of Default within 20 days of the receipt of notice from the Trustee
of the occurrence of such Event of Default; provided, however, an Event of
Default under clause (i) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. Upon any such waiver of an Event of
Default by Certificateholders, the Trustee shall be entitled to recover all
costs and expenses incurred by it in connection with enforcement action taken
with respect to such Event of Default prior to such waiver from the Trust Fund.
No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that the
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within the later of (i) five Business Days following such failure by the Master
Servicer with respect to Servicing Advances resulting in an Event of Default
under Section 7.01(a)(iii) hereof and (ii) the date necessary to avoid a
foreclosure of liens for delinquent real estate taxes, a lapse in insurance
coverage or a breach under any Ground Lease for the failure to pay any rents, in
each case to the extent a Responsible Officer of the Trustee has actual
knowledge of such failure with respect to such Servicing Advances and (y) by
noon, New York City time, on the related Distribution Date with respect to P&I
Advances pursuant to the Trustee's notice of failure pursuant to Section 4.03(a)
unless such failure has been cured. With respect to any such Advance made by the
Trustee, the Trustee shall succeed to all of the Master Servicer's rights with
respect to Advances hereunder, including, without limitation, the Master
Servicer's rights of reimbursement and interest on each Advance at the
Reimbursement Rate, and rights to determine that a proposed Advance is a
Nonrecoverable P&I Advance or Servicing Advance, as the case may be, (without
regard to any impairment of any such rights of reimbursement caused by the
Master Servicer's default in its obligations hereunder); provided, however, if
Advances made by the Trustee and the Master Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts available to repay such Advances and the interest thereon hereunder
shall be applied entirely to the Advances outstanding to the Trustee, until such
Advances shall have been repaid in full, together with all interest accrued
thereon, prior to reimbursement of the Master Servicer for such Advances. The
Trustee shall be entitled to conclusively rely on any notice given with respect
to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. If an Event of
Default occurs and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall notify the party providing such instrument
and requesting the correction thereof. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Master Servicer or the Special Servicer or another Person, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) 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 willful misconduct or bad faith; provided, however:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Trustee shall promptly make available via its internet
website initially located at "xxx.xxxxxxx.xxx" to the Companion Holders all
reports that the Trustee has made available to Certificateholders under this
Agreement.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall not be under any obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, 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 from such
requesting Holders against such expense or liability as a condition to
taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the requesting Holders;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, the appointment of such agents or attorneys
shall not relieve the Trustee of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is
acting as the Master Servicer or as a Special Servicer, as the case may be
in which case the Trustee shall only be responsible for its own actions as
the Master Servicer or Special Servicer) or of the Depositor.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates, other than the acknowledgments of the Trustee in Sections 2.02 and
2.05 and the signature, if any, of the Certificate Registrar and Authenticating
Agent set forth on any outstanding Certificate, shall be taken as the statements
of the Depositor, the Master Servicer or the Special Servicer, as the case may
be, and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Agreement or
of any Certificate (other than as to the signature, if any, of the Trustee set
forth thereon) or of any Mortgage Loan or related document. The Trustee shall
not be accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the applicable Certificate Account or any other account by or on
behalf of the Depositor, the Master Servicer, the Special Servicer. The Trustee
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer and
accepted by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates. The Trustee, in its
individual capacity, not as Trustee, may become the owner or pledgee of
Certificates, and may deal with the Depositor, the Master Servicer, the Special
Servicer, the Initial Purchasers and the Underwriters in banking transactions,
with the same rights it would have if it were not Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee. (a) As compensation for the performance of its duties hereunder, the
Trustee will be paid the Trustee Fee equal to the Trustee's portion of one
month's interest at the Trustee Fee Rate, which shall cover recurring and
otherwise reasonably anticipated expenses of the Trustee. The Trustee Fee shall
be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage
Loan and REO Loan, the Trustee Fee shall accrue from time to time at the Trustee
Fee Rate and shall be computed on the basis of the Stated Principal Balance of
such Mortgage Loan and a 360-day year consisting of twelve 30-day months. The
Trustee Fee (which shall not be limited to any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole form of compensation for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder. No Trustee Fee shall be payable with
respect to the Companion Loans.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless by the Trust Fund
(to the extent of amounts on deposit in the Certificate Accounts or Lower-Tier
Distribution Account from time to time) against any loss, liability or expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement,
and expenses incurred in becoming successor master servicer or successor special
servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, any act or omission of the Trustee relating to the
exercise and performance of any of the powers and duties of the Trustee
hereunder; provided, however, none of the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (i) allocable overhead, (ii) expenses or disbursements incurred or
made by or on behalf of the Trustee in the normal course of the Trustee
performing its duties in accordance with any of the provisions hereof, which are
not "unanticipated expenses of the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of negligent disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee made herein. The provisions of this Section 8.05(b) shall survive the
termination of this Agreement and any resignation or removal of the Trustee and
appointment of a successor thereto. The foregoing indemnity shall also apply to
the Trustee in its capacities of Certificate Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be, and will be required to resign if it fails to
be, (i) a corporation, national bank, national banking association or a trust
company, organized and doing business under the laws of any state or the United
States of America, authorized under such laws to exercise corporate trust powers
and to accept the trust conferred under this Agreement, having a combined
capital and surplus of at least $100,000,000 and subject to supervision or
examination by federal or state authority and shall not be an Affiliate of the
Master Servicer or the Special Servicer (except during any period when the
Trustee is acting as, or has become successor to, the Master Servicer or the
Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated "AA-" by S&P and
"Aa3" by Xxxxx'x, (or such other rating as would not, as evidenced in writing by
such Rating Agency, result in the qualification, downgrading or withdrawal of
any of the ratings then assigned thereby to the Certificates or any class of
Companion Loan Securities); provided that the Trustee shall not cease to be
eligible to serve as such based on a failure to satisfy such rating requirements
so long as the Trustee maintains a long-term unsecured debt rating of no less
than "A+" from S&P and "Baa2" from Xxxxx'x and a short-term unsecured debt
rating of at least "A-1" by S&P (or such rating as would not, as evidenced in
writing by such Rating Agency, result in a qualification, downgrading or
withdrawal of any of the ratings assigned to the Certificates or any class of
Companion Loan Securities).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
the Upper-Tier REMIC and the Lower-Tier REMIC or in which the Trustee's office
is located is in a state or local jurisdiction that imposes a tax on the Trust
Fund on the net income of a REMIC (other than a tax corresponding to a tax
imposed under the REMIC Provisions), the Trustee shall elect either to (i)
resign immediately in the manner and with the effect specified in Section 8.07,
(ii) pay such tax at no expense to the Trust or (iii) administer the Upper-Tier
REMIC and the Lower-Tier REMIC from a state and local jurisdiction that does not
impose such a tax.
Section 8.07 Resignation and Removal of the Trustee. (a) The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, the Master Servicer, the Special
Servicer, the Swap Counterparty and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Master Servicer and the Directing Certificateholder by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer, the
Certificateholders and the Swap Counterparty by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee shall fail (other than by reason of the failure
of either the Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
reasonable control), to timely publish any report to be delivered, published or
otherwise made available by the Trustee pursuant to Section 4.02 and such
failure shall continue unremedied for a period of five days, or if the Trustee
fails to make distributions required pursuant to Sections 3.05(c), 4.01 or 9.01,
then the Depositor may remove the Trustee and appoint a successor trustee
acceptable to the Master Servicer by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer and the
remaining Certificateholders by the Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred (including without limitation, unreimbursed
Advances). No Trustee shall be personally liable for any action or omission of
any successor Trustee.
Section 8.08 Successor Trustee. (a) Any successor Trustee appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Master Servicer, the Special Servicer and to its predecessor
Trustee an 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 become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements held by it hereunder (other
than any Mortgage Files at the time held on its behalf by a Custodian, which
Custodian, at Custodian's option shall become the agent of the successor
Trustee), and the Depositor, the Master Servicer, the Special Servicer and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee all such rights, powers, duties and
obligations, and to enable the successor Trustee to perform its obligations
hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 and the appointment of
such successor trustee would not, as evidenced in writing by S&P, result in a
qualification, downgrading or withdrawal of any of the ratings assigned to the
Certificates.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Master Servicer shall mail notice of the
succession of such trustee to the Depositor and the Certificateholders. If the
Master Servicer fails to mail such notice within 10 days after receipt of notice
of the acceptance of appointment by the successor trustee, such successor
trustee shall cause such notice to be mailed at the expense of the Master
Servicer.
Section 8.09 Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or converted or with which it may be
consolidated or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee shall be
the successor of the Trustee hereunder; provided that such successor Person
shall be eligible under the provisions of Section 8.06, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee will provide notice
of such event to the Master Servicer, the Special Servicer, the Depositor and
the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing Mortgage Loans may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as a co-trustee or co-trustees, jointly with the Trustee, as
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of a trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. All co-trustee fees
shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or a
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or a
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, respectively, as effectively as if given to each of them. Every
instrument appointing any separate trustee or a co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and a
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians. The Trustee may appoint one
or more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. Any Custodian appointed hereunder must maintain
a fidelity bond and errors and omissions policy in an amount customary for
Custodians which serve in such capacity in commercial mortgage loan
securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Trustee three copies of any private
placement memorandum or other disclosure document used by the Depositor or its
Affiliate in connection with the offer and sale of the Class of Certificates to
which such Non-Registered Certificate relates. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Trustee, the Depositor
promptly shall inform the Trustee of such event and shall deliver to the Trustee
a copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Trustee shall maintain at its offices primarily
responsible for administering the Trust Fund and shall, upon reasonable advance
notice, make available during normal business hours for review by any Holder of
a Certificate, the Depositor, the Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Trustee believes such disclosure
is appropriate, originals or copies of the following items: (i) in the case of a
Holder or prospective transferee of a Non-Registered Certificate, any private
placement memorandum or other disclosure document relating to the Class of
Certificates to which such Non-Registered Certificate belongs, in the form most
recently provided to the Trustee and (ii) in all cases, including the related
Companion Holder with respect to any Serviced Whole Loan (a) this Agreement and
any amendments hereto entered into pursuant to Section 12.01, (b) all statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, (c) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 11.09, (d) all
accountants' reports delivered to the Trustee since the Closing Date pursuant to
Section 11.11, (e) any inspection report prepared by the Master Servicer,
Sub-Servicer or Special Servicer, as applicable, and delivered to the Trustee
and the Master Servicer in respect of each Mortgaged Property pursuant to
Section 3.12(a), (f) as to each Mortgage Loan and Companion Loan pursuant to
which the related Mortgagor is required to deliver such items or the Special
Servicer has otherwise acquired such items, the most recent annual operating
statement and rent roll of the related Mortgaged Property and financial
statements of the related Mortgagor and any other reports of the Mortgagor
collected by the Master Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(c), together
with the accompanying written reports to be prepared by the Special Servicer and
delivered to the Trustee pursuant to Section 3.12(b), (g) any and all notices,
reports and Environmental Assessments delivered to the Trustee with respect to
any Mortgaged Property securing a Defaulted Mortgage Loan and Companion Loan as
to which the environmental testing contemplated by Section 3.09(c) revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied (but only for so long as such Mortgaged Property or
the related Mortgage Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan and
Companion Loan entered into by the Master Servicer or the Special Servicer and
delivered to the Trustee pursuant to Section 3.20 (but only for so long as the
affected Mortgage Loan and Companion Loan is part of the Trust Fund), (i) any
and all Officer's Certificates delivered to the Trustee to support the Master
Servicer's determination that any P&I Advance or Servicing Advance was or, if
made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
as the case may be, (j) any and all of the Mortgage Loan and Companion Loan
documents contained in the Mortgage File, (k) any and all Appraisals obtained
pursuant to the definition of "Appraisal Reduction" herein, (l) information
regarding the occurrence of Servicing Transfer Events as to the Mortgage Loans
and (m) any and all Sub-Servicing Agreements and any amendments thereto and
modifications thereof. Copies of any and all of the foregoing items will be
available from the Trustee upon request; provided, however, the Trustee shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies, except in the case of copies provided to
the Directing Certificateholder or the Rating Agencies, which shall be free of
charge (except for extraordinary or duplicate requests). In addition, without
limiting the generality of the foregoing, any holder of a Nonregistered
Certificate may upon request from the Trustee obtain a copy of any factual
report (other than the Asset Status Report) delivered to the Rating Agencies
under this Agreement.
(b) The Trustee shall make available to certain financial market
publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex
Solutions LLC on a monthly basis, all CMSA reports and any other reports
required to be delivered by the Trustee pursuant to Article IV hereof. If any
such information is provided on or before September 6, 2007, the Trustee shall
make the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and Intex
Solutions, Inc.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Trustee shall, in accordance with such reasonable rules and procedures as each
may adopt (which may include the requirement that an agreement that provides
that such information shall be used solely for purposes of evaluating the
investment characteristics of the Certificates be executed), also provide the
reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Trustee, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the
Trustee, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Trustee
pursuant to this Section 8.12, the Trustee shall be entitled to indicate the
source of such information and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion. The Trustee shall notify Certificateholders
of the availability of any such information in any manner as it, in its sole
discretion, may determine. In connection with providing access to or copies of
the items described in the preceding paragraph, the Trustee may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Trustee, as
applicable, generally to the effect that such Person is a beneficial holder of
Certificates, is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person in form and substance reasonably acceptable to
the Trustee, generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information solely
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Master Servicer and
the Special Servicer and for the benefit of the Certificateholders and the
related Companion Holders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by the Trustee and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the final payment (or related Advance) or
other liquidation of the last Mortgage Loan or REO Property subject thereto or
(ii) the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, the Master Servicer or the Holders of
the Class LR Certificates, in that order of priority, of all the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund at
a price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of the Trust Fund's portion of each REO Property, if any,
included in the Trust Fund (such Appraisals in clause (a)(2) to be conducted by
an Independent MAI-designated appraiser selected and mutually agreed upon by the
Master Servicer and the Trustee, and approved by more than 50% of the Voting
Rights of the Classes of Certificates then outstanding (other than the
Controlling Class unless the Controlling Class is the only Class of Certificates
then outstanding)) (which approval shall be deemed given unless more than 50% of
such Certificateholders object within 20 days of receipt of notice thereof) and
(3) the reasonable out-of-pocket expenses of the Master Servicer with respect to
such termination, unless the Master Servicer is the purchaser of such Mortgage
Loans, minus (b) solely in the case where the Master Servicer is effecting such
purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to the Master Servicer in respect of such Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase) and (iii)
exchange by the Sole Certificateholder pursuant to the terms of the immediately
succeeding paragraph, the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. James's, living on the date hereof.
Following the date on which the Offered Certificates (other than the
Class X Certificates) and the Class G, Class H, Class J and Class K Certificates
retire, the Sole Certificateholder shall have the right to exchange all of its
Certificates (other than the Class S and the Residual Certificates) for all of
the Mortgage Loans and the Trust Fund's portion of each REO Property remaining
in the Trust Fund as contemplated by clause (iii) of the first paragraph of this
Section 9.01 by giving written notice to all the parties hereto no later than 60
days prior to the anticipated date of exchange. In the event that the Sole
Certificateholder elects to exchange all of its Certificates (other than the
Class S and the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Accounts an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicer, the Special Servicer and the Trustee hereunder through the date of the
liquidation of the Trust Fund that may be withdrawn from the Certificate
Account, or an escrow account acceptable to the respective parties hereto,
pursuant to Section 3.05(a) or that may be withdrawn from the Distribution
Account pursuant to Section 3.05(a), but only to the extent that such amounts
are not already on deposit in the Certificate Account. In addition, the Master
Servicer shall transfer all amounts required to be transferred to the Lower-Tier
Distribution Account on the P&I Advance Date related to such Distribution Date
in which the final distribution on the Certificates is to occur from the
Certificate Account pursuant to the first paragraph of Section 3.04(b)
(provided, however, that if the Serviced Whole Loan is secured by REO Property,
the Trust Fund's portion of the REO Property which is being purchased pursuant
to the foregoing, the portion of the above-described purchase price allocable to
such Trust Fund's portion of REO Property shall initially be deposited into the
related REO Account). Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Class S and
the Residual Certificates) on the final Distribution Date, the Trustee shall,
upon receipt of a Request for Release from the Master Servicer, release or cause
to be released to the Sole Certificateholder or any designee thereof, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund, and the Trust Fund shall
be liquidated in accordance with Section 9.02. Such transfers shall be subject
to any rights of any Sub-Servicers to service or perform select servicing
functions with respect to the Mortgage Loans. Solely for federal income tax
purposes, the Sole Certificateholder shall be deemed to have purchased the
assets of the Lower-Tier REMIC for an amount equal to the remaining Certificate
Balance of its Certificates (other than the Class S, Class X and the Residual
Certificates), plus accrued, unpaid interest with respect thereto, and the
Trustee shall credit such amounts against amounts distributable in respect of
such Certificates and Related Uncertificated Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the
applicable Companion Paying Agent shall terminate with respect to any Companion
Loan to the extent (i) its related Serviced Whole Loan has been paid in full or
is no longer part of the Trust Fund and (ii) no amounts payable by the related
Companion Holder to or for the benefit of the Trust or any party hereto in
accordance with the related Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee and the other parties hereto
no later than 60 days prior to the anticipated date of purchase; provided,
however, the Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates may so elect to
purchase all of the Mortgage Loans and the Trust Fund's portion of each REO
Property remaining in the Trust Fund only on or after the first Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
the Trust Fund's portion of any REO Loans remaining in the Trust Fund is less
than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans
set forth in the Preliminary Statement. In the event that the Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates purchases all of the Mortgage Loans and the Trust Fund's
portion of each REO Property remaining in the Trust Fund in accordance with the
preceding sentence, the Master Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates, as
applicable, shall deposit in the Lower-Tier Distribution Account not later than
the P&I Advance Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur, an amount in immediately available
funds equal to the above-described purchase price (exclusive of any portion
thereof payable to any Person other than the Certificateholders pursuant to
Section 3.05(a), which portion shall be deposited in the Certificate Account).
In addition, the Master Servicer shall transfer to the Lower-Tier Distribution
Account all amounts required to be transferred thereto on such P&I Advance Date
from the Certificate Account pursuant to the first paragraph of Section 3.04(b),
together with any other amounts on deposit in the Certificate Account that would
otherwise be held for future distribution and, without duplication, pay to the
Swap Counterparty any Class A-2FL Net Swap Payment as required by Section
3.31(c). Upon confirmation that such final deposits and payments have been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates, as applicable, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Master Servicer, and then the Holders of the
Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Trustee by letter to the Certificateholders, the Swap
Counterparty and each Rating Agency and the related Companion Holder with
respect to a Serviced Whole Loan and, if not previously notified pursuant to
this Section 9.01, to the other parties hereto mailed (a) in the event such
notice is given in connection with the purchase of all of the Mortgage Loans and
each REO Property remaining in the Trust Fund, not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of the final
distribution on the Certificates, or (b) otherwise during the month of such
final distribution on or before the P&I Advance Determination Date in such
month, in each case specifying (i) the Distribution Date upon which the Trust
Fund will terminate and final payment of the Certificates will be made, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the offices of the
Certificate Registrar or such other location therein designated.
After transferring the Lower-Tier Regular Distribution Amount and
the amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) to the Upper-Tier Distribution Account (and with respect to any amounts
payable to the Class A-2FL Regular Interest, from the Upper-Tier Distribution
Account to the Floating Rate Account), in each case pursuant to Section 3.04(b),
and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account (or, in the case of the Class
A-2FL Certificates, amounts then on deposit in the Floating Rate Account after
payment of any Class A-2FL Net Swap Payment to the Swap Counterparty, as
specified in Section 4.01(k)) that are allocable to payments on the Class of
Certificates so presented and surrendered and to the Holders of the Class S
Certificates any amounts remaining on deposit in the Excess Interest
Distribution Account. Amounts transferred from the Lower-Tier Distribution
Account to the Upper-Tier Distribution Account as of the final Distribution Date
(exclusive of any portion of such amounts payable or reimbursable to any Person
pursuant to clause (ii) of Section 3.05(e)) shall be allocated for these
purposes, in the amounts and in accordance with the priority set forth in
Sections 4.01(b), 4.01(d) and 4.01(e) and shall be distributed in termination
and liquidation of the Uncertificated Lower-Tier Interests and the Class LR
Certificates in accordance with Sections 4.01(b), 4.01(d) and 4.01(e). Any funds
not distributed on such Distribution Date shall be set aside and held uninvested
in trust for the benefit of the Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed of
in accordance with this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements. (a) In the event
the Master Servicer, the Special Servicer, the Holders of the Controlling Class
or the Holders of the Class LR Certificates purchases all of the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the plan of
complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Trust Fund to the Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates, as applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Trustee shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Class LR
Certificates (in the case of the Lower-Tier REMIC) and the Class R
Certificates (in the case of the Upper-Tier REMIC) all cash on hand (other
than cash retained to meet claims), and the Trust Fund and each of the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
(b) In the event the Trust Fund is to be terminated while the Swap
Contract is still in effect, the Trustee shall promptly notify the Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of the Swap Contract will be reduced to zero on
such date. Based on the date of termination, the Trustee shall calculate the
Class A-2FL Net Swap Payment, if any, as specified in Section 3.31, and prior to
any final distributions to the Holders of the Class A-2FL Certificates, pursuant
to Section 9.01, shall pay such Class A-2FL Net Swap Payment, if any, to the
Swap Counterparty. In the event that any fees (including termination fees) are
payable to the Swap Counterparty in connection with such termination, such fees
will be payable to the Swap Counterparty solely from amounts remaining in the
Floating Rate Account after all distributions to the Class A-2FL Certificates
are made pursuant to Section 9.01.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Trustee shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicer, nor the Trustee shall permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in the Lower-Tier
REMIC or the Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Trustee shall act on behalf of each REMIC in relation to any
tax matter or controversy involving either REMIC and shall represent each REMIC
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the Trustee shall be entitled to reimbursement therefor out of
amounts attributable to the Mortgage Loans and any REO Properties on deposit in
the Certificate Account as provided by Section 3.05(a) unless such legal
expenses and costs are incurred by reason of the Trustee's willful misfeasance,
bad faith or gross negligence. The Holder of the largest Percentage Interest in
each of the (i) Class R and (ii) Class LR Certificates shall be designated, in
the manner provided under Treasury Regulations Section 1.860F-4(d) and temporary
Treasury Regulations Section 301.6231(a)(7)-1T, as the "tax matters person" of
the (i) Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively. By their
acceptance thereof, the Holders of the largest Percentage Interest in each of
the (i) Class R and (ii) Class LR Certificates hereby agrees to irrevocably
appoint the Trustee as their agent to perform all of the duties of the "tax
matters person" for (i) the Upper-Tier REMIC and (ii) the Lower-Tier REMIC,
respectively.
(d) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it determines are required with respect to each of the Lower-Tier
REMIC and the Upper-Tier REMIC created hereunder, and shall sign and file or
cause to be filed such Tax Returns in a timely manner. The ordinary expenses of
preparing such returns shall be borne by the Trustee without any right of
reimbursement therefor.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate or Class LR Certificate such information as
is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Trustee shall take such actions and shall cause the Trust
Fund to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
a REMIC under the REMIC Provisions. Neither the Master Servicer nor the Special
Servicer shall knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a tax upon the
Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund (including but not
limited to the tax on "prohibited transactions" as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code, but not including the tax on "net income from foreclosure
property") (either such event, an "Adverse REMIC Event") unless the Trustee
receives an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and the Trustee determines
that taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC
created hereunder, endanger such status or, unless the Trustee determines in its
sole discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax (not including a tax on "net income from foreclosure
property"). The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which it has received an Opinion of Counsel to
the effect that an Adverse REMIC Event could occur with respect to such action
or inaction. In addition, prior to taking any action with respect to the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or any of their respective
assets, or causing the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC
to take any action, which is not expressly permitted under the terms of this
Agreement, the Trustee will determine whether such action could cause an Adverse
REMIC Event to occur with respect to the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC and the Trustee shall not take any action or cause the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC to take any such action as to
which it has determined that an Adverse REMIC Event could occur. The Trustee may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not expressly permitted by this
Agreement, but in no event at the expense of the Trustee. At all times as may be
required by the Code, the Trustee will to the extent within its control and the
scope of its duties more specifically set forth herein, maintain substantially
all of the assets of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
"qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Trustee in writing), and shall remit to the Master Servicer such reserved
amounts as the Master Servicer shall request in order to pay such taxes. Except
as provided in the preceding sentence, the Master Servicer shall withdraw from
the applicable Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
the Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization shall not
prevent the Trustee from contesting, at the expense of the Trust Fund (other
than as a consequence of a breach of its obligations under this Agreement), any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate, into a separate non-interest bearing
account, the net income from any "prohibited transaction" under Section 860F(a)
of the Code or the amount of any taxable contribution to the Lower-Tier REMIC or
the Upper-Tier REMIC after the Startup Day that is subject to tax under Section
860G(d) of the Code and use such income or amount, to the extent necessary, to
pay such prohibited transactions tax. To the extent that any such tax (other
than any such tax paid in respect of "net income from foreclosure property") is
paid to the Internal Revenue Service or applicable state or local tax
authorities, the Trustee shall retain an equal amount from future amounts
otherwise distributable to the Holders of Residual Certificates (as applicable)
and shall distribute such retained amounts, (x) in the case of the
Uncertificated Lower-Tier REMIC Interests, to the Upper-Tier REMIC to the extent
they are fully reimbursed for any Collateral Support Deficit arising therefrom
and then to the Holders of the Class LR Certificates in the manner specified in
Section 4.01(b) and (y) in the case of the Upper-Tier REMIC, to the Holders of
Class A (other than the Class A-2FL Certificates), Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q, Class T, Class NR and Class X
Certificates and the Class A-2FL Regular Interest, as applicable, in the manner
specified in Section 4.01(a), to the extent they are fully reimbursed for any
Collateral Support Deficit, arising therefrom and then to the Holders of the
Class R Certificates. None of the Trustee, the Master Servicer or the Special
Servicer shall be responsible for any taxes imposed on the Lower-Tier REMIC or
the Upper-Tier REMIC except to the extent such taxes arise as a consequence of a
breach of their respective obligations under this Agreement which breach
constitutes willful misfeasance, bad faith, or negligence by such party.
(h) The Trustee shall, for federal income tax purposes, maintain or
cause to be maintained books and records with respect to each of the Lower-Tier
REMIC and the Upper-Tier REMIC on a calendar year and on an accrual basis or as
otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Lower-Tier REMIC and the Upper-Tier REMIC unless
the Trustee shall have received an Opinion of Counsel (at the expense of the
party seeking to make such contribution) to the effect that the inclusion of
such assets in the Lower-Tier REMIC or the Upper-Tier REMIC will not (i) cause
the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at
any time that any Uncertificated Lower-Tier Interests or Certificates are
outstanding or (ii) subject any of the Trust Fund or the Lower-Tier REMIC or the
Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) The Trustee shall not enter into any arrangement by which the
Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC will receive a fee or
other compensation for services nor permit the Trust Fund or the Lower-Tier
REMIC or the Upper-Tier REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of the Class A-2FL Regular Interest and
each Class of Certificates (other than the Class A-2FL, Class S and Residual
Certificates) representing a "regular interest" in the Upper-Tier REMIC and by
which the Lower-Tier Principal Amount of each Class of Uncertificated Lower-Tier
Interests representing a "regular interest" in the Lower-Tier REMIC would be
reduced to zero is the Rated Final Distribution Date.
(l) None of the Trustee, the Master Servicer or the Special
Servicer, as applicable, shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition or
sale of a Mortgaged Property acquired by foreclosure or deed in lieu of
foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the termination of the
Trust Fund pursuant to Article IX of this Agreement or (iv) a purchase of
Mortgage Loans pursuant to Article II or III of this Agreement) or acquire any
assets for the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC or
sell or dispose of any investments in the Certificate Account or the REO Account
for gain unless it has received an Opinion of Counsel that such sale,
disposition or substitution will not (a) affect adversely the status of the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the Trustee,
the Master Servicer or the Special Servicer, as applicable, has determined in
its sole discretion to indemnify the Trust Fund against such tax, cause the
Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to a
tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(b) The Trustee may execute any of its obligations and duties under
this Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee. (a) The Depositor shall provide or cause to be provided
to the Trustee within ten (10) days after the Depositor receives a request from
the Trustee, all information or data that the Trustee reasonably determines to
be relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, Prepayment
Assumptions and projected cash flow of the Certificates.
(b) The Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Trustee in order to enable it to perform its duties
hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Trustee
may appoint at the Trustee's expense, one or more REMIC Administrators, which
shall be authorized to act on behalf of the Trustee in performing the functions
set forth in Section 10.01 herein. The Trustee shall cause any such REMIC
Administrator to execute and deliver to the Trustee an instrument in which such
REMIC Administrator shall agree to act in such capacity, with the obligations
and responsibilities herein. The appointment of a REMIC Administrator shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of the REMIC
Administrator. Each REMIC Administrator must be acceptable to the Trustee and
must be organized and doing business under the laws of the United States of
America or of any State and be subject to supervision or examination by federal
or state authorities. In the absence of any other Person appointed in accordance
herewith acting as REMIC Administrator, the Trustee hereby agrees to act in such
capacity in accordance with the terms hereof. If LaSalle Bank National
Association is removed as Trustee, then LaSalle Bank National Association shall
be terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator 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 REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 10.04, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Certificateholders; provided, however, no successor
REMIC Administrator shall be appointed unless eligible under the provisions of
this Section 10.04. Any successor REMIC Administrator 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 REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
[End of Article X]
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. Neither the Depositor
nor the Master Servicer shall exercise their rights to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder; provided that in all instances the
reports and certificates contemplated by Sections 11.09, 11.10 and 11.11 shall
be provided to the Rating Agencies as required thereunder; provided, however,
the Trustee shall be deemed to have satisfied any delivery requirements to the
Rating Agencies thereunder by making such reports and certificates available on
its internet website. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, due to interpretive guidance
provided by the Commission or its staff, and agree to comply with requests made
by the Depositor or the Master Servicer in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
the requirements of Regulation AB. In connection with the X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2007-LDP11 Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11, each of the Master Servicer, the Special
Servicer and the Trustee shall cooperate fully with the Depositor and the
Trustee, as the case may be, to deliver or make available to the Depositor or
the Trustee (including any of their assignees or designees), any and all
statements, reports, certifications, records and any other information (in its
possession or reasonably attainable) necessary in the good faith determination
of the Depositor or the Trustee, as applicable, to permit the Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Master Servicer, the Special Servicer and the Trustee, as
applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans,
reasonably believed by the Depositor or the Trustee, as applicable, in good
faith to be necessary in order to effect such compliance. Each party to this
Agreement shall have a reasonable period of time to comply with any written
request made under this Section 11.01, but in any event, shall, upon reasonable
advance written request, provide information in sufficient time to allow the
Depositor or the Trustee, as applicable, to satisfy any related filing
requirements. For purposes of this Article XI, to the extent any party has an
obligation to exercise commercially reasonable efforts to cause a third party to
perform, such party hereunder shall not be required to bring any legal action
against such third party in connection with such obligation.
Section 11.02 Succession; Subcontractors. (a) For so long as the
Trust is subject to the reporting requirements of the Exchange Act (in addition
to any requirements contained in Section 11.07), in connection with the
succession to any Reporting Servicer by any Person (i) into which any Reporting
Servicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Master Servicer and Special Servicer or any Subservicer (other
than a succession or appointment pursuant to Section 7.01(b) for which notice
may be delivered as soon as reasonably practicable), any Reporting Servicer
shall provide to the Depositor and the Trustee, at least 15 calendar days (or
such shorter period agreed to by the Depositor) prior to the effective date of
such succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information relating to such
successor reasonably requested by the Depositor so that the Depositor may comply
with its reporting obligation under Item 6.02 of Form 8-K pursuant to the
Exchange Act (if such reports under the Exchange Act are required to be filed
under the Exchange Act); provided, however that if disclosing such information
prior to such effective date would violate any applicable law or confidentiality
agreement, the Reporting Servicer, as applicable, shall submit such disclosure
to the Depositor and the Trustee no later than the first Business Day after the
effective date of such succession or appointment.
(b) For so long as the Trust is subject to the reporting
requirements of the Exchange Act (in addition to any requirements contained in
Section 11.07), each of the Master Servicer, the Special Servicer, the
Sub-Servicer and the Trustee (each of the Master Servicer, the Special Servicer,
the Trustee and each Sub-Servicer, for purposes of this paragraph, a "Servicer")
is permitted to utilize one or more Subcontractors to perform certain of its
obligations hereunder. For so long as the Trust is subject to the reporting
requirements of the Exchange Act (in addition to any requirements contained in
Section 11.07), such Servicer shall promptly upon request provide to the
Depositor a written description (in form and substance satisfactory to the
Depositor) of the role and function of each Subcontractor that is a Servicing
Function Participant utilized by such Servicer, specifying the identity of each
Subcontractor that is a Servicing Function Participant, and the elements of the
Servicing Criteria that will be addressed in assessments of compliance provided
by such Subcontractor. As a condition to the utilization by such Servicer of any
Subcontractor determined to be a Servicing Function Participant, such Servicer
shall (i) with respect to any such Subcontractor engaged by such Servicer that
is an Initial Sub-Servicer, use commercially reasonable efforts to cause, and
(ii) with respect to any other such subcontractor with which it has entered into
a servicing relationship, cause such Subcontractor used by such Servicer for the
benefit of the Depositor and the Trustee to comply with the provisions of
Section 11.10 and Section 11.11 of this Agreement to the same extent as if such
Subcontractor were such Servicer. With respect to any Servicing Function
Participant engaged by such Servicer that is an Initial Sub-Servicer, such
Servicer shall be responsible for using commercially reasonable efforts to
obtain, and with respect to each other Servicing Function Participant engaged by
such Servicer, such Servicer shall obtain from each such Servicing Function
Participant and deliver to the applicable Persons any assessment of compliance
report and related accountant's attestation required to be delivered by such
Subcontractor under Section 11.10 and Section 11.11, in each case, as and when
required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor, other than an Initial Sub-Servicer, in connection with the
performance of any of its duties under this Agreement, such Servicer shall be
responsible for determining whether such Subcontractor is a "servicer" within
the meaning of Item 1101 of Regulation AB and whether any such Subcontractor
meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a
Servicer determines, pursuant to the preceding sentence, that such Subcontractor
is a "servicer" within the meaning of Item 1101 of Regulation AB and meets the
criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such
Subcontractor shall be deemed to be a Sub-Servicer for purposes of this
Agreement, the engagement of such Sub-Servicer, other than an Initial
Sub-Servicer, shall not be effective unless and until notice is given to the
Depositor and the Trustee of any such Sub-Servicer and Subservicing Agreement.
Other than with respect to the Initial Sub-Servicer, no Subservicing Agreement
shall be effective until 15 days after such written notice is received by the
Depositor and the Trustee (or such shorter period as is agreed to by the
Depositor). Such notice shall contain all information reasonably necessary to
enable the Trustee to accurately and timely report the event under Item 6.02 of
Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act
are required to be filed under the Exchange Act).
(d) As a condition to the succession to the Trustee or Special
Servicer under this Agreement by any Person (i) into which such party may be
merged or consolidated, or (ii) which may be appointed as a successor to any
such party, that party shall notify the Depositor and each Rating Agency, at
least 15 calendar days prior to the effective date of such succession or
appointment (or if such prior notice would violate applicable law or any
applicable confidentiality agreement, no later than one (1) Business Day after
such effective date of succession) and shall furnish to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably necessary for the Trustee to accurately and timely
report, pursuant to Section 11.07, the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 11.03 Filing Obligations. (a) The Reporting Servicers shall
reasonably cooperate with the Depositor in connection with the satisfaction of
the Trust's reporting requirements under the Exchange Act. Pursuant to Sections
11.04, 11.05 and 11.06 below, the Trustee shall prepare for execution by the
Depositor any Forms 8-K, 10-D and 10-K required by the Exchange Act, in order to
permit the timely filing thereof, and the Trustee shall file (via the
Commission's Electronic Data Gathering and Retrieval System ("Xxxxx")) such
Forms executed by the Depositor.
(b) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement, the Trustee will promptly notify (which notice may be sent by
fax or by e-mail notwithstanding the provisions of Section 12.05 and shall
include identity of those Reporting Servicers who either did not deliver such
information or delivered such information to it after the delivery deadlines set
forth in this Agreement) the Depositor and each Reporting Servicer that failed
to make such disclosure. In the case of Forms 10-D and 10-K, the Depositor, the
Master Servicer, the Special Servicer and the Trustee will thereupon cooperate
to prepare and file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Trustee will, upon receipt of all required Form 8-K Disclosure
Information and upon the approval and direction of the Depositor, include such
disclosure information on the next succeeding Form 10-D to be filed for the
Trust. In the event that any previously filed Form 8-K, Form 10-D or Form 10-K
needs to be amended, the Trustee will notify the Depositor, and such other
parties as needed and the parties hereto will cooperate with the Trustee to
prepare any necessary Form 8-K/A, Form 10-D/A or Form 10-K/A ; provided however
that the Trustee will not be required to notify the Depositor or any other party
hereto in advance of amending Form 10-D where such amendment is solely for the
purpose of re-stating the Statement to Certificateholders. Any Form 15, Form
12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by
an authorized officer of the Depositor or a senior officer of the Depositor in
charge of securitization, as applicable. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
11.03 related to the timely preparation, arrangement for execution and filing of
Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is
contingent upon the parties observing all applicable deadlines in the
performance of their duties under Sections 11.03, 11.04, 11.05, 11.06, 11.07,
11.08, 11.09, 11.10 and 11.11. The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file any such Form 15, Form 12b-25
or any amendments to Form 8-K, Form 10-D or Form 10-K, where such failure
results from the Trustee's inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form
10-D or Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Trustee shall prepare and file on behalf of the Trust any Form 10-D required by
the Exchange Act, in form and substance as required by the Exchange Act. The
Trustee shall file each Form 10-D with a copy of the related Statement to
Certificateholders attached thereto. Any disclosure in addition to the Statement
to Certificateholders that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall, pursuant to the following paragraph be reported by
the parties set forth on Exhibit V to the Depositor and the Trustee and approved
by the Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure (other
than Additional Form 10-D Disclosure required to be reported by it as set forth
herein), absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Exhibit V hereto, within five calendar days
after the related Distribution Date, (i) the parties listed on Exhibit V hereto
shall be required to provide to the Trustee and the Depositor, to the extent a
Regulation AB Servicing Officer or Responsible Officer, as the case may be,
thereof has actual knowledge, in XXXXX-compatible format, or in such other
format as otherwise agreed upon by the Trustee, the Depositor and such providing
parties, the form and substance of the Additional Form 10-D Disclosure described
on Exhibit V applicable to such party, (ii) the parties listed on Exhibit V
hereto shall include with such Additional Form 10-D Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit Y and (iii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit V of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor will be responsible for any reasonable
fees assessed and expenses incurred by the Trustee in connection with including
any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
(b) After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review no later than
10 calendar days after the related Distribution Date. Within two Business Days
after receipt of such copy, but no later than the two Business Days prior to the
15th calendar day after the Distribution Date, the Depositor shall notify the
Trustee in writing (which may be furnished electronically) of any changes to or
approval of such Form 10-D and, a duly authorized officer of the Depositor shall
sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. Alternatively, if the Trustee agrees, the Depositor may deliver to the
Trustee manually signed copies of a power of attorney meeting the requirements
of Item 601(b)(24) of Regulation S-K under the Securities Act, and certified
copies of a resolution of the Depositor's board of directors authorizing such
power of attorney, each to be filed with each Form 10-D, in which case the
Trustee shall sign such Forms 10-D as attorney in fact for the Depositor. If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be
amended, the Trustee will follow the procedures set forth in Section 11.03(b).
Promptly after filing with the Commission, the Trustee will make available on
its internet website a final executed copy of each Form 10-D prepared and filed
by the Trustee. The signing party at the Depositor can be contacted at Xxxxxx
Xxxxx, Vice President and Secretary, X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice President,
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000. The parties to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 11.04(b) related to the timely preparation, arrangement for
execution and filing of Form 10-D is contingent upon such parties observing all
applicable deadlines in the performance of their duties under this Section
11.04(b). The Trustee shall have no liability for any loss, expense, damage, or
claim arising out of or with respect to any failure to properly prepare, arrange
for execution and/or timely file such Form 10-D, where such failure results from
the Trustee's inability or failure to receive, on a timely basis, any
information from any party to this Agreement needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the fifth calendar day after the related Distribution
Date with respect to the filing of a report on Form 10-D if the answer to the
questions should be "no." The Trustee shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-D.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust (it being understood that the fiscal year for the
Trust ends on December 31 of each year) or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the
Trustee shall prepare and file on behalf of the Trust a Form 10-K, in form and
substance as required by the Exchange Act. Each such Form 10-K shall include the
following items, in each case to the extent they have been delivered to the
Trustee within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for the Master Servicer, the
Special Servicer and each Additional Servicer as described under Section
11.09;
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for the Trustee, the Master Servicer, the Special
Servicer, each Additional Servicer and each Servicing Function Participant
engaged by the Master Servicer, the Special Servicer or Trustee, as
described under Section 11.10; and
(B) if any such report on assessment of compliance with
servicing criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation as to why such report is
not included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, the Master Servicer, the Special Servicer, each
Additional Servicer and each Servicing Function Participant engaged by the
Master Servicer, the Special Servicer or the Trustee, as described under
Section 11.11; and
(B) if any registered public accounting firm attestation
report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation as to
why such report is not included; and
(iv) a certification in the form attached hereto as Exhibit P, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the following paragraph be reported by the parties set forth
on Exhibit X to the Depositor and the Trustee and approved by the Depositor and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure (other than such
Additional Form 10-K Disclosure which is to be reported by it as set forth
herein), absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 15 (or March 14 if a leap year),
commencing in March 2008 (i) the parties listed on Exhibit W hereto shall be
required to provide to the Trustee and the Depositor to the extent a Regulation
AB Servicing Officer or Responsible Officer, as the case may be, thereof has
actual knowledge, in XXXXX-compatible format, or in such other format as
otherwise agreed upon by the Trustee and the Depositor and such providing party,
the form and substance of the Additional Form 10-K Disclosure described on
Exhibit W applicable to such party, (ii) the parties listed on Exhibit W hereto
shall include with such Additional Form 10-K Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit Y, and (iii) the
Depositor will approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit W of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-K
Disclosure information. The Depositor will be responsible for any reasonable
fees assessed and expenses incurred by the Trustee in connection with including
any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
(b) After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
6 Business Days prior to the 10-K Filing Deadline. Within three Business Days
after receipt of such copy, but no later than March 25th, the Depositor shall
notify the Trustee in writing (which may be furnished electronically) of any
changes to or approval of such Form 10-K and the senior officer in charge of
securitization for the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Trustee at such time. If a Form 10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trustee shall follow the procedures set forth in Section 11.03(b). Promptly
after filing with the Commission, the Trustee will make available on its
internet website a final executed copy of each Form 10-K prepared and filed by
the Trustee. The signing party at the Depositor can be contacted at Xxxxxx
Xxxxx, Vice President and Secretary, X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice President,
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000. The parties to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 11.05 related to the timely preparation, arrangement for
execution and filing of Form 10-K is contingent upon the parties to this
Agreement (and any Additional Servicer or Servicing Function Participant engaged
or utilized, as applicable, by any such parties) observing all applicable
deadlines in the performance of their duties under this Section 11.05. The
Trustee shall have no liability for any loss, expense, damage, claim arising out
of or with respect to any failure to properly prepare, arrange for execution
and/or timely file such Form 10-K, where such failure results from the Trustee's
inability or failure or receive, on a timely basis, any information from the
parties to this Agreement (or any Sub-Servicer or Servicing Function Participant
engaged by any such parties) needed to prepare, arrange for execution or file
such Form 10-K on a timely basis, not resulting from its own negligence, bad
faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the 15th calendar day of March in any year in which the
Trust is required to file a Form 10-K if the answer to the questions should be
"no." The Trustee shall be entitled to rely on such representations in
preparing, executing and/or filing any Form 10-K.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit P
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff). The Master Servicer, the
Special Servicer and the Trustee shall provide, and (i) with respect to each
Initial Sub-Servicer engaged by the Master Servicer or the Special Servicer, as
applicable, that is a Servicing Function Participant use commercially reasonable
efforts to cause such Initial Sub-Servicer to provide and (ii) with respect to
each other Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans, shall cause such
Servicing Function Participant to provide, to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person") by March 15 (or March 14
if a leap year) of each year in which the Trust is subject to the reporting
requirements of the Exchange Act, a certification in the form attached hereto as
Exhibit Q-1, Q-2, and Q-3 (each, a "Performance Certification"), as applicable,
on which the Certifying Person, the entity for which the Certifying Person acts
as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. In addition, in the event that any Companion Loan is deposited
into a commercial mortgage securitization (an "Other Securitization"), each
Reporting Servicer shall comply with all requirements with respect thereto
contemplated by the related Intercreditor Agreement and shall provide to the
Person who signs the Xxxxxxxx-Xxxxx Certification with respect to such Other
Securitization a Performance Certification, in form and substance similar to the
applicable Performance Certification (which shall address the matters contained
in the applicable Performance Certification, but solely with respect to the
related Companion Loan) on which such Person, the entity for which the Person
acts as an officer, and such entity's officers, directors and Affiliates can
reasonably rely. With respect to the JQH Hotel Portfolio Pari Passu Companion
Loan after the JQH Hotel Portfolio Servicing Transfer Event, the Trustee will
use its reasonable efforts to procure a Xxxxxxxx-Xxxxx back-up certification
from, as the case may be, the BACM 2007-3 Master Servicer, the BACM 2007-3
Special Servicer and the BACM 2007-3 Trustee in form and substance similar to a
Performance Certification. The senior officer in charge of securitization for
the Depositor shall serve as the Certifying Person on behalf of the Trust. In
addition, each Reporting Servicer shall execute a reasonable reliance
certificate (or may include an equivalent of such reliance certificate in its
Xxxxxxxx-Xxxxx Certification) to enable the Certification Parties to rely upon
each (i) annual compliance statement provided pursuant to Section 11.09, (ii)
annual report on assessment of compliance with servicing criteria provided
pursuant to Section 11.10 and (iii) accountant's report provided pursuant to
Section 11.11, and shall include a certification that each such annual
compliance statement or report discloses any deficiencies or defaults described
to the registered public accountants of such Reporting Servicer to enable such
accountants to render the certificates provided for in Section 11.11. In the
event any Reporting Servicer is terminated or resigns pursuant to the terms of
this Agreement, or any applicable sub-servicing agreement or primary servicing
agreement, as the case may be, such Reporting Servicer shall provide a
certification to the Certifying Person pursuant to this Section 11.06 with
respect to the period of time it was subject to this Agreement or the applicable
sub-servicing or primary servicing agreement, as the case may be. Each such
Performance Certification shall be provided in XXXXX-compatible format, or in
such other format agreed upon by the Depositor, the Trustee and such providing
parties.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor and to the extent it
receives the Form 8-K Disclosure Information described below), the Trustee shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act; provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K (other than the initial Form 8-K) ("Form 8-K Disclosure Information")
shall, pursuant to the following paragraph be reported by the parties set forth
on Exhibit X to the Depositor and the Trustee and approved by the Depositor, and
the Trustee will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K (other
than such Form 8-K Disclosure Information which is to be reported by it as set
forth herein), absent such reporting, direction and approval.
For so long as the Trust is subject to the Exchange Act reporting
requirements, no later than noon (New York time) on the 2nd Business Day after
the occurrence of a Reportable Event (i) the parties set forth on Exhibit X
hereto shall be required to provide to the Depositor and the Trustee, to the
extent a Regulation AB Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge, in XXXXX-compatible format or in such other
format agreed upon by the Depositor, the Trustee and such providing parties the
Form 8-K Disclosure Information described in Exhibit X applicable to such party,
(ii) the parties listed on Exhibit X hereto shall include with such Form 8-K
Disclosure Information, an Additional Disclosure Notification in the form
attached hereto as Exhibit Y and (iii) the Depositor will approve, as to form
and substance, or disapprove, as the case may be, the inclusion of the Form 8-K
Disclosure Information on Form 8-K. The Trustee has no duty under this Agreement
to monitor or enforce the performance by the parties listed on Exhibit Y of
their duties under this paragraph or proactively solicit or procure from such
parties any Form 8-K Disclosure Information. The Depositor will be responsible
for any reasonable fees assessed and expenses incurred by the Trustee in
connection with including any Form 8-K Disclosure Information on Form 8-K
pursuant to this paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
noon (New York City time) on the 3rd Business Day after the Reportable Event,
but in no event earlier than 24 hours after having received the Form 8-K
Disclosure Information pursuant to the immediately preceding paragraph.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Trustee in writing
(which may be furnished electronically) of any changes to or approval of such
Form 8-K. No later than noon (New York City time) on the 4th Business Day after
the Reportable Event, a duly authorized officer of the Depositor shall sign the
Form 8-K and return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by overnight mail) to the Trustee. If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Trustee will follow the procedures set forth in Section 11.03(b).
Promptly after filing with the Commission, the Trustee will, make available on
its internet website a final executed copy of each Form 8-K prepared and filed
by the Trustee. The signing party at the Depositor can be contacted at Xxxxxx
Xxxxx, Vice President and Secretary, X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice President,
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000. The parties to
this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 11.07 related to the timely preparation, arrangement for
execution and filing of Form 8-K is contingent upon such parties observing all
applicable deadlines in the performance of their duties under this Section
11.07. The Trustee shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 8-K, where such failure results from the
Trustee's inability or failure to receive, on a timely basis, any information
from the parties to this Agreement needed to prepare, arrange for execution or
file such Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
The Master Servicer, the Special Servicer and the Trustee shall
promptly notify (and the Master Servicer and the Special Servicer shall (i) with
respect to each Initial Sub-Servicer that is an Additional Servicer engaged by
the Master Servicer, Special Servicer or Trustee use commercially reasonable
efforts to cause such Additional Servicer to promptly notify and (ii) with
respect to each other Additional Servicer with which it has entered into a
servicing relationship with respect to the Mortgage Loans (other than a party to
this Agreement) cause such Additional Servicer to promptly notify) the Depositor
and the Trustee pursuant to the 2nd preceding paragraph, but in no event later
than noon (New York City time) on the 2nd Business Day after its occurrence, of
any Reportable Event described on Exhibit X applicable to such party to the
extent a Regulation AB Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge thereof, in XXXXX-compatible format.
Section 11.08 Form 15 Filing. On or prior to January 30 of the first
year in which the Trustee is able to do so under applicable law, the Trustee
shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If, after the filing of a Form 15 Suspension Notification, at the end of
any fiscal year for the Trust the number of Certificateholders of record exceeds
the number set forth in Section 15(d) of the Exchange Act or the regulations
promulgated pursuant thereto which would cause the Trust to again become subject
to the reporting requirements of the Exchange Act, the Trustee shall recommence
preparing and filing reports on Forms 10-K, 10-D and 8-K as required pursuant to
Section 11.04, Section 11.05 and Section 11.07; provided that if the Trustee re
commences the preparing and filing of Exchange Act reports, it may, as soon as
permitted by the Exchange Act, file another Form 15 Suspension Notification.
Section 11.09 Annual Compliance Statements. The Master Servicer, the
Special Servicer and the Trustee (each, a "Certifying Servicer") shall deliver
to (and each such party shall (i) with respect to each Additional Servicer
engaged by the Master Servicer, Special Servicer or Trustee that is an Initial
Sub-Servicer, use commercially reasonable efforts to cause such Additional
Servicer to deliver to and (ii) with respect to each other Additional Servicer
with which it has entered into a servicing relationship with respect to the
Mortgage Loans, cause such Additional Servicer to deliver to) the Depositor and
the Trustee on or before March 15 (or March 14 if a leap year) of each year,
commencing in March 2008, an Officer's Certificate in the form attached hereto
as Exhibit DD stating, as to the signer thereof, that (A) a review of such
Certifying Servicer's activities during the preceding calendar year or portion
thereof and of such Certifying Servicer's performance under this Agreement, or
the applicable sub servicing agreement or primary servicing agreement in the
case of an Additional Servicer, has been made under such officer's supervision
and (B) to the best of such officer's knowledge, based on such review, such
Certifying Servicer has fulfilled all its obligations under this Agreement, or
the applicable sub servicing agreement or primary servicing agreement in the
case of an Additional Servicer, in all material respects throughout such year or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer and
the nature and status thereof. Such Officer's Certificate shall be provided in
XXXXX-compatible format, or in such other format agreed upon by the Depositor,
the Trustee and such providing parties. The Master Servicer, the Special
Servicer and the Trustee shall, and each such party shall (i) with respect to
each Additional Servicer engaged by the Master Servicer, Special Servicer or
Trustee that is an Initial Sub-Servicer, use commercially reasonable efforts to
cause such Additional Servicer, and (ii) with respect to each other Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans, cause such Additional Servicer to forward a copy of each
such statement (or, in the case of the Trustee, make a copy of each such
statement available on its internet website) to the Rating Agencies and the
Directing Certificateholder. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review each such Officer's Certificate and, if
applicable, consult with the Master Servicer, the Special Servicer or the
Trustee, as applicable, as to the nature of any failures by the Master Servicer,
the Special Servicer or Trustee, respectively, or any related Additional
Servicer with which the Master Servicer, the Special Servicer or the Trustee, as
applicable, has engaged in the fulfillment of the Master Servicer's, the Special
Servicer's, the Trustee's or Additional Servicer's obligations hereunder or
under the applicable sub-servicing or primary servicing agreement. The
obligations of the Master Servicer, the Special Servicer, the Trustee and each
Additional Servicer under this Section apply to the Master Servicer, the Special
Servicer, the Trustee and each Additional Servicer that serviced a Mortgage Loan
during the applicable period, whether or not the Master Servicer, the Special
Servicer, the Trustee or Additional Servicer is acting as the Master Servicer,
the Special Servicer, the Trustee or Additional Servicer at the time such
Officer's Certificate is required to be delivered. With respect to the JQH Hotel
Portfolio Pari Passu Companion Loan after the JQH Hotel Portfolio Servicing
Transfer Event, the Trustee will use its reasonable efforts to procure a
Officer's Certificate from, as the case may be, the BACM 2007-3 Master Servicer,
the BACM 2007-3 Special Servicer and the BACM 2007-3 Trustee. None of the Master
Servicer, Special Servicer or Additional Servicer shall be required to cause the
delivery of any such statement until April 15 in any given year so long as it
has received written confirmation from the Depositor that a report on Form 10-K
is not required to be filed in respect of the Trust for the preceding calendar
year. The Trustee shall not be required to deliver any such statement in any
given year so long as it has received written confirmation from the Depositor
that a report on Form 10-K is not required to be filed in respect of the Trust
for the preceding calendar year.
In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and the Master Servicer and the Special Servicer shall (i)
with respect to an Initial Sub-Servicer engaged by such party that is an
Additional Servicer that resigns or is terminated under any applicable servicing
agreement, use its reasonable efforts to cause such Additional Servicer to
provide and (ii) such party shall (and with respect to any other Additional
Servicer engaged by such party that resigns or is terminated under any
applicable servicing agreement, cause such Additional Servicer to provide) an
annual statement of compliance pursuant to this Section 11.09 with respect to
the period of time that the Master Servicer, the Special Servicer or the Trustee
was subject to this Agreement or the period of time that such Additional
Servicer was subject to such other servicing agreement.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 (or March 14 if a leap year) of
each year, commencing in March 2008, the Master Servicer, the Special Servicer
and the Trustee, each at its own expense, shall furnish (and each party shall
(i) with respect to each Initial Sub-Servicer engaged by the Master Servicer,
Special Servicer and Trustee that is a Servicing Function Participant, use
commercially reasonable efforts to cause such Servicing Function Participant to
furnish and (ii) with respect to each other Servicing Function Participant with
which it has entered into a servicing relationship with respect to the Mortgage
Loans, cause such Servicing Function Participant to furnish) engaged by it to,
furnish to the Trustee and the Depositor, with a copy to the Rating Agencies, a
report on an assessment of compliance with the Servicing Criteria applicable to
it that contains (A) a statement by such Reporting Servicer of its
responsibility for assessing compliance with the Applicable Servicing Criteria,
(B) a statement that such Reporting Servicer used the Servicing Criteria to
assess compliance with the Applicable Servicing Criteria, (C) such Reporting
Servicer's assessment of compliance with the Applicable Servicing Criteria as of
and for the period ending the end of the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 11.05, including, if there has been any
material instance of noncompliance with the Applicable Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such Reporting Servicer's assessment of compliance with the Applicable
Servicing Criteria as of and for such period. In addition, with respect to the
JQH Hotel Portfolio Pari Passu Companion Loan after the JQH Hotel Portfolio
Servicing Transfer Event, the Trustee will use its reasonable efforts to procure
a ss.229.1122 assessment of compliance with the Servicing Criteria report from,
as the case may be, the BACM 2007-3 Master Servicer, the BACM 2007-3 Special
Servicer and the BACM 2007-3 Trustee in form and substance similar to Exhibit U.
Such report shall be provided in XXXXX-compatible format or in such other format
as agreed upon by the Depositor, the Trustee and the Reporting Servicer.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address the
Applicable Servicing Criteria specified on Exhibit U hereto delivered to the
Depositor on the Closing Date. Promptly after receipt of each such report, (i)
the Depositor may review each such report and, if applicable, consult with each
Reporting Servicer as to the nature of any material instance of noncompliance
with the Servicing Criteria applicable to it (and each Servicing Function
Participant engaged or utilized by each Reporting Servicer, as applicable), and
(ii) the Trustee shall confirm that the assessments taken individually address
the Relevant Servicing Criteria for each party as set forth on Exhibit U and
notify the Depositor of any exceptions. None of the Master Servicer, the Special
Servicer or any Servicing Function Participant shall be required to cause the
delivery of any such assessments until April 15 in any given year so long as it
has received written confirmation from the Depositor that a report on Form 10-K
is not required to be filed in respect of the Trust for the preceding calendar
year. The Trustee shall not be required to deliver any such statement in any
given year so long as it has received written confirmation from the Depositor
that a report on Form 10-K is not required to be filed in respect of the Trust
for the preceding calendar year.
(b) The Master Servicer, the Special Servicer and the Trustee (and
any Servicing Function Participant with which the Master Servicer, Special
Servicer or Trustee has entered into a servicing relationship) hereby
acknowledge and agree that the Applicable Servicing Criteria set forth on
Exhibit U is appropriately completed as set forth above with respect to such
party.
(c) No later than 10 Business Days after the end of each fiscal year
for the Trust, the Master Servicer and the Special Servicer shall notify the
Trustee and the Depositor as to the name of each Additional Servicer engaged by
it and each Servicing Function Participant utilized by it, in each case other
than with respect to any Initial Sub-Servicer and the Trustee shall notify the
Depositor as to the name of each Servicing Function Participant utilized by it,
in each case by providing an updated Exhibit U and each such notice will specify
what specific Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant. When the Master
Servicer, the Special Servicer and any Additional Servicer submit their
assessments to the Trustee, such parties, as applicable, will also at such time
include the assessment (and related attestation pursuant to Section 11.11) of
each Servicing Function Participant engaged by it and shall indicate to the
Trustee what Applicable Servicing Criteria will be addressed in the report on
assessment of compliance prepared by such Servicing Function Participant.
In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide (and the Master Servicer and the Special
Servicer shall (i) with respect to an Initial Sub-Servicer engaged by the Master
Servicer or Special Servicer that is a Servicing Function Participant that
resigns or is terminated under any applicable servicing agreement, use its
reasonable efforts to cause such Servicing Function Participant and (ii) with
respect to any other Servicing Function Participant that resigns or is
terminated under any applicable servicing agreement, cause such Servicing
Function Participant to provide) an annual assessment of compliance pursuant to
this Section 11.10, coupled with an attestation as required in Section 11.11 in
respect to the period of time that the Master Servicer, the Special Servicer or
the Trustee was subject to this Agreement or the period of time that the
Additional Servicer was subject to such other servicing agreement.
Section 11.11 Annual Independent Public Accountants' Servicing
Report. On or before March 15 (or March 14 if a leap year) of each year,
commencing in March 2008, the Master Servicer, the Special Servicer and the
Trustee, each at its own expense, shall cause (and the Master Servicer, the
Special Servicer and the Trustee shall (i) with respect to each Initial
Sub-Servicer engaged by the Master Servicer, Special Servicer or Trustee that is
a Servicing Function Participant use commercially reasonable efforts to cause
such Servicing Function Participant to cause and (ii) with respect to each other
Servicing Function Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans to cause such Servicing Function
Participant to cause) a registered public accounting firm (which may also render
other services to the Master Servicer, the Special Servicer, the Trustee or the
applicable Servicing Function Participant, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish a
report to the Trustee and the Depositor, with a copy to the Rating Agencies and
the Directing Certificateholder, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Reporting
Servicer, which includes an assessment from such Reporting Servicer of its
compliance with the Applicable Servicing Criteria and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the PCAOB, it is expressing an opinion as to
whether such Reporting Servicer's assessment of compliance with the Servicing
Criteria 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. In addition, with respect to the JQH
Hotel Portfolio Pari Passu Companion Loan after the JQH Hotel Portfolio
Servicing Transfer Event, the Trustee will use its reasonable efforts to procure
a substantially similar report from, as the case may be, the BACM 2007-3 Master
Servicer, the BACM 2007-3 Special Servicer and the BACM 2007-3 Trustee. Each
such related accountant's attestation report shall be made in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language. Such report shall be provided in XXXXX-compatible
format or in such other format as agreed upon by the Depositor, the Trustee and
the Reporting Servicer.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee or any Servicing Function Participant, (i) the
Depositor shall review the report and, if applicable, consult with the Master
Servicer, the Special Servicer or the Trustee as to the nature of any defaults
by the Master Servicer, the Special Servicer, the Trustee or any Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, as the case may be, in the fulfillment of
any of the Master Servicer', the Special Servicer's, the Trustee's or the
applicable Servicing Function Participants' obligations hereunder or under the
applicable sub-servicing or primary servicing agreement, and (ii) the Trustee
shall confirm that each accountants' attestation report submitted pursuant to
this Section is coupled with an assessment of compliance meeting the
requirements of Section 11.10 and notify the Depositor of any exceptions. None
of the Master Servicer, the Special Servicer or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, such reports until April 15 in any given year so long as it has received
written confirmation from the Depositor that a Form 10-K is not required to be
filed in respect of the Trust for the preceding fiscal year. The Trustee shall
not be required to deliver any such statement in any given year so long as it
has received written confirmation from the Depositor that a report on Form 10-K
is not required to be filed in respect of the Trust for the preceding calendar
year.
Section 11.12 Indemnification. Each of the Master Servicer, the
Special Servicer and the Trustee shall indemnify and hold harmless each
Certification Party from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments and
other costs and expenses incurred by such Certification Party arising out of (i)
an actual breach by the Master Servicer, the Special Servicer or the Trustee, as
the case may be, of its obligations to the Depositor or the Trustee under this
Article XI or (ii) negligence, bad faith or willful misconduct on the part of
the Master Servicer, the Special Servicer or the Trustee in the performance of
such obligations.
The Master Servicer, the Special Servicer and the Trustee shall (i)
with respect to any Initial Sub-Servicer engaged by the Master Servicer, Special
Servicer or Trustee that is a Servicing Function Participant or Additional
Servicer, use commercially reasonable efforts to cause such party to and (ii)
with respect to each other Additional Servicer and each Servicing Function
Participant with which, in each case, it has entered into a servicing
relationship with respect to the Mortgage Loans to cause such party to indemnify
and hold harmless each Certification Party from and against any and all claims,
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments and any other costs, fees and expenses incurred by such
Certification Party arising out of (i) a breach of its obligations to the
Depositor or the Trustee to provide any of the annual compliance statements or
annual assessment of compliance reports or attestation reports pursuant to this
Agreement, the applicable sub-servicing or primary servicing agreement or (ii)
negligence, bad faith or willful misconduct its part in the performance of such
obligations or (iii) any failure by a Servicer (as defined in Section 11.02(b))
to identify a Servicing Function Participant pursuant to Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, the Additional Servicer or other Servicing
Function Participant (the "Performing Party") shall contribute to the amount
paid or payable to the Certification Party as a result of the losses, claims,
damages or liabilities of the Certification Party in such proportion as is
appropriate to reflect the relative fault of the Certification Party on the one
hand and the Performing Party on the other in connection with a breach of the
Performing Party's obligations pursuant to this Article XI (or breach of its
obligations under the applicable sub-servicing or primary servicing agreement to
provide any of the annual compliance statements or annual servicing criteria
compliance reports or attestation reports) or the Performing party's negligence,
bad faith or willful misconduct in connection therewith. The Master Servicer,
the Special Servicer and the Trustee shall (i) with respect to any Initial
Sub-Servicer engaged by the Master Servicer, Special Servicer or Trustee that is
a Servicing Function Participant or Additional Servicer, use commercially
reasonable efforts to cause such party to and (ii) with respect to each other
Additional Servicer or Servicing Function Participant, in each case, with which
it has entered into a servicing relationship with respect to the Mortgage Loans
cause such party to agree to the foregoing indemnification and contribution
obligations. This Section 11.12 shall survive the termination of this Agreement
or the earlier resignation or removal of the Master Servicer or the Special
Servicer.
Section 11.13 Amendments. This Article XI may be amended by the
parties hereto with their written consent pursuant to Section 12.01 for purposes
of complying with Regulation AB and/or to conform to standards developed within
the commercial mortgage-backed securities market and the Xxxxxxxx-Xxxxx Act or
for purposes of designating the Certifying Person without, in each case, any
Opinions of Counsel, Officer's Certificates, Rating Agency confirmation with
respect to the Certificates or the Companion Loan Securities or the consent of
any Certificateholder, notwithstanding anything to the contrary contained in
this Agreement; provided that the reports and certificates required to be
prepared pursuant to Sections 11.09, 11.10 and 11.11 shall not be eliminated
without Rating Agency confirmation with respect to the Certificates or the
Companion Loan Securities.
Section 11.14 Regulation AB Notices. Any notice required to be
delivered by the Trustee to the Depositor pursuant to this Article XI may be
delivered via email (and additionally delivered via phone or telecopy),
notwithstanding the provisions of Section 12.05, to X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx, telecopy number: (000) 000-0000, telephone number: (000) 000-0000
and email: Xxxxxx.x.xxxxx@xxxxxxxx.xxx, with a copy to Xxxxxx Xxxxx, Vice
President and Secretary, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
000-0000, telephone number: (000) 000-0000 and email: Xxxxx_xxxxxx@xxxxxxxx.xxx.
Section 11.15 Certain Matters Relating to the Future Securitization
of the Serviced Pari Passu Companion Loans.
(a) Each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall use
commercially reasonable efforts to cause any sub-servicer appointed with respect
to any Serviced Pari Passu Companion Loan to, upon request or notice from a
Mortgage Loan Seller (or a permitted transferee of such Mortgage Loan Seller
pursuant to the related Intercreditor Agreement), cooperate with the Mortgage
Loan Seller (or such permitted transferee) selling any Serviced Pari Passu
Companion Loan into a securitization that is required to comply with Regulation
AB (a "Regulation AB Companion Loan Securitization") and, to the extent needed
in order to comply with Regulation AB, provide to the Mortgage Loan Seller (or
such permitted transferee) information about itself that such Mortgage Loan
Seller reasonably requires to meet the requirements of Items 1117 and 1119 and
paragraphs (b), (c)(3), (c)(4) and (c)(5) of Item 1108 of Regulation AB and
shall cooperate with such Mortgage Loan Seller to provide such other information
as may be necessary to comply with the requirements of Regulation AB. Each of
the Trustee, the Master Servicer and the Special Servicer understands that such
information may be included in the offering material related to a Regulation AB
Companion Loan Securitization and agrees to negotiate in good faith an agreement
(subject to the final sentence of this sub-section) to indemnify and hold the
related depositor and underwriters involved in the offering of the related
Certificates harmless for any costs, liabilities, fees and expenses incurred by
the depositor or such underwriters as a result of any material misstatements or
omissions or alleged material misstatements or omissions in any such offering
material to the extent that such material misstatement or omission was made in
reliance upon any such information provided by the Trustee (where such
information pertains to LaSalle Bank National Association individually and not
to any specific aspect of the Trustee's duties or obligations under this
Agreement), the Master Servicer (where such information pertains to Wachovia
Bank, National Association individually and not to any specific aspect of the
Master Servicer's duties or obligations under this Agreement) and the Special
Servicer (where such information pertains to CWCapital Asset Management LLC
individually and not to any specific aspect of the Special Servicer's duties or
obligations under this Agreement), as applicable, to such depositor,
underwriters or Mortgage Loan Seller (or permitted transferee) as required by
this clause (a). Notwithstanding the foregoing, to the extent that the
information provided by the Trustee, the Master Servicer or the Special
Servicer, as applicable, for inclusion in the offering materials related to such
Regulation AB Companion Loan Securitization is substantially and materially
similar to the information provided by such party with respect to the offering
materials related to this transaction, subject to any required changes due to
any amendments to Regulation AB or any changes in the interpretation of
Regulation AB, such party shall be deemed to be in compliance with this Section
11.15(a). Any indemnification agreement executed by the Trustee, the Master
Servicer or Special Servicer in connection with the Regulation AB Companion Loan
Securitization shall be substantially similar to the related indemnification
agreement executed in connection with this Agreement. It shall be a condition
precedent to any party's obligations otherwise set forth above that the
applicable Mortgage Loan Seller (or permitted transferee) shall have (a)
provided reasonable advance notice of the exercise of its rights hereunder and
(b) paid, or entered into reasonable agreement to cause to be paid, the
reasonable out-of-pocket expenses (including reasonable fees and expenses of
counsel) incurred by such party in reviewing and/or causing the delivery of any
disclosure, opinion of counsel or indemnification agreement.
(b) Each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall use
commercially reasonable efforts to cause any sub-servicer appointed with respect
to a Serviced Securitized Companion Loan to, upon request or notice from such
parties (which request or notice may be given once at the closing of such
Regulation AB Companion Loan Securitization instead of each time a filing is
required), cooperate with the trustee, master servicer or special servicer for
any Regulation AB Companion Loan Securitization in preparing each Form 10-D
required to be filed by such Regulation AB Companion Loan Securitization (until
January 30 of the first year in which the trustee for such Regulation AB
Companion Loan Securitization files a Form 15 Suspension Notice with respect to
the related trust) and shall provide to such trustee or master servicer within
the time period set forth in the Other Pooling and Servicing Agreement (so long
as such time period is no earlier than the time periods set forth herein) for
such Regulation AB Companion Loan Securitization such information relating to a
Serviced Securitized Companion Loan as may be necessary for the servicer and
trustee of the Regulation AB Companion Loan Securitization to comply with the
reporting requirements of Regulation AB; provided, however, any parties to any
Regulation AB Companion Loan Securitization shall consult with the Trustee, the
Master Servicer and the Special Servicer (and Master Servicer shall consult with
the Primary Servicer and any sub-servicer appointed with respect to the related
Serviced Whole Loan), and the Trustee, the Master Servicer and the Special
Servicer shall cooperate with such parties in respect of establishing the time
periods for preparation of the Form 10-D reports in the documentation for such
Regulation AB Companion Loan Securitization. Notwithstanding the foregoing, to
the extent the Trustee, the Master Servicer or the Special Servicer, as the case
may be, complies in all material respects with the timing, reporting and
attestation requirements imposed on such party in Article XI of this Agreement
(other than this Section 11.15) with respect to the comparable timing, reporting
and attestation requirements contemplated in this section 11.15(b) with respect
to such Regulation AB Companion Loan Securitization, such party shall be deemed
to be in compliance with the provisions of this Section 11.15(b).
(c) Each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall use
commercially reasonable efforts to cause any sub-servicer appointed with respect
to a Serviced Securitized Companion Loan to, upon request from such trustee
(which request or notice may be given once at the closing of such Regulation AB
Companion Loan Securitization instead of each time a filing is required),
provide the trustee under a Regulation AB Companion Loan Securitization (until
January 30 of the first year in which the trustee for such Regulation AB
Companion Loan Securitization files a Form 15 Suspension Notice with respect to
the related trust) information with respect to any event that is required to be
disclosed under Form 8-K with respect to a Serviced Securitized Companion Loan
within two Business Days after the occurrence of such event of which it has
knowledge. Notwithstanding the foregoing, to the extent the Trustee, the Master
Servicer or the Special Servicer, as the case may be, complies in all material
respects with the timing, reporting and attestation requirements imposed on such
party in Article XI of this Agreement (other than this Section 11.15) with
respect to the comparable timing, reporting and attestation requirements imposed
on such party contemplated in this section 11.15(c) with respect to such
Regulation AB Companion Loan Securitization, such party shall be deemed to be in
compliance with the provisions of this Section 11.15(c).
(d) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the Master Servicer and the
Special Servicer shall, and the Master Servicer and the Special Servicer shall
use commercially reasonable efforts to cause any sub-servicer appointed with
respect to a Serviced Securitized Companion Loan to, upon request from such
trustee (which request or notice may be given once at the closing of such
Regulation AB Companion Loan Securitization instead of each time a filing is
required), provide, with respect to itself, to the trustee under such Regulation
AB Companion Loan Securitization, to the extent required pursuant to Item 1122
of Regulation AB, (i) a report on an assessment of compliance with the servicing
criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii)
a registered accounting firm's attestation report on such Person's assessment of
compliance with the applicable servicing criteria to the extent required
pursuant to Item 1122(b) of Regulation AB and (iii) such other information as
may be required pursuant to Item 1122(c) of Regulation AB. Notwithstanding the
foregoing, to the extent the Trustee, the Master Servicer or the Special
Servicer, as the case may be, complies in all material respects with the timing,
reporting and attestation requirements imposed on such party in Article XI of
this Agreement (other than this Section 11.15) with respect to the comparable
timing, reporting and attestation requirements contemplated in this section
11.15(d) with respect to such Regulation AB Companion Loan Securitization, such
party shall be deemed to be in compliance with the provisions of this Section
11.15(d).
(e) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the Master Servicer and the
Special Servicer shall, and the Master Servicer and the Special Servicer shall
use reasonable efforts to cause any sub-servicer appointed with respect to a
Serviced Securitized Companion Loan to, to the extent required pursuant to Item
1123 of Regulation AB, deliver, with respect to itself, to the trustee, upon
request from such trustee (which request or notice may be given once at the
closing of such Regulation AB Companion Loan Securitization instead of each time
a filing is required), under such Regulation AB Companion Loan Securitization a
servicer compliance statement signed by an authorized officer of such Person
that satisfies the requirements of Item 1123 of Regulation AB. Notwithstanding
the foregoing, to the extent the Trustee, the Master Servicer or the Special
Servicer, as the case may be, complies in all material respects with the timing,
reporting and attestation requirements imposed on it in Article XI of this
Agreement (other than this Section 11.15) with respect to the comparable timing,
reporting and attestation requirements contemplated in this section 11.15(e)
with respect to such Regulation AB Companion Loan Securitization, such party
shall be deemed to be in compliance with the provisions of this Section
11.15(e).
(f) Each of the Trustee, the Master Servicer and the Special
Servicer shall use commercially reasonable efforts to cause a sub-servicer to
agree (severally but not jointly) to indemnify (such indemnity limited to each
such parties respective failure described below) and hold the related Mortgage
Loan Seller (or permitted transferee), depositor, trustee or master servicer
under a Regulation AB Companion Loan Securitization harmless for any costs,
liabilities, fees and expenses incurred by such Mortgage Loan Seller, depositor,
trustee or master servicer as a result of any failure by the Trustee, the Master
Servicer and the Special Servicer, as applicable, to comply with the reporting
requirements to the extent applicable set forth under Sections 11.15(b), (c),
(d) or (e) above.
Any subservicing agreement related to a Serviced Securitized
Companion Loan shall contain a provision requiring the related Sub-Servicer to
provide to the Master Servicer or Special Servicer, as applicable, information,
reports and certificates with respect to itself comparable to any information,
reports or certificates required to be provided by the Master Servicer or
Special Servicer pursuant to this Section 11.15, even if such Sub-Servicer is
not otherwise required to provide such information, reports or certificates to
any Person in order to comply with Regulation AB. Such information, reports or
certificates shall be provided to the Master Servicer or Special Servicer, as
applicable, no later than two Business Days prior to the date on which the
Master Servicer or Special Servicer, as applicable, is required to deliver its
comparable information, reports or certificates pursuant to this Section 11.15.
Each party hereto shall be entitled to rely on the information in
the Prospectus Supplement with respect to the identity of any Sponsor, credit
enhancer, derivative provider or "significant obligor" as of the Closing Date
other than with respect to itself or any information required to be provided by
it or indemnified for by it pursuant to any separate agreement.
[End of Article XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any
tax on the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC pursuant to the Code that would be a claim against the Trust Fund or
either of the Lower-Tier REMIC or the Upper-Tier REMIC; provided that the
Trustee has received an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that (a) such action is necessary
or desirable to maintain such qualification or to avoid or minimize the
risk of the imposition of any such tax and (b) such action will not
adversely affect in any material respect the interests of any
Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account; provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee), adversely affect in any material respect the interests of
any Certificateholder or any Companion Holder and (c) such change shall
not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates or class of
Companion Loan Securities as evidenced by a letter from each Rating Agency
to such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement; provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto or (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates or class of Companion Loan Securities, as evidenced
by a letter from each Rating Agency and, in the case of a Companion Loan,
a Rating Agency rating any class of related Companion Loan Securities, to
such effect;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, and, in the case of any Companion
Loan, a Rating Agency rating any class of related Companion Loan
Securities to such effect; provided that such change shall not result in
the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates or class of Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such
effect; provided that such amendment or supplement will not adversely
affect in any material respect the interests of any holder of a Companion
Loan; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard
for such provisions has changed, in order to conform to such industry
standard, (b) such modification does not adversely affect the status of
the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or of the Grantor
Trust as a grantor trust, as evidenced by an Opinion of Counsel and (c)
each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or
qualification of any of the then current ratings of any Class of
Certificates or class of Companion Loan Securities.
provided that no such amendment (A) changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller or (B) materially and adversely affects the
holders of a Companion Loan without such Companion Holder's consent; and
provided, further, such amendment shall not significantly change the activities
of the Trust (insofar as such change would adversely affect the status of the
Trust as a "qualifying special purpose entity" under FASB 140).
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66(2)/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller;
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency together with the consent of the Companion
Holders (to the extent such consent is required under the related
Intercreditor Agreement), amend the Servicing Standards; or
(vi) significantly change the activities of the Trust (insofar as
such changes would adversely affect the status of the Trust as a
"qualifying special purpose entity" under FASB 140) without the consent of
the Holders of Certificates entitled to not less than 51% of all the
Voting Rights (without regard to Certificates held by the Depositor, any
Mortgage Loan Seller or any Affiliates and/or agents of the Depositor or
any Mortgage Loan Seller) and the consent of the Directing
Certificateholder.
(c) Notwithstanding the foregoing, none of the Trustee, the
Depositor, the Master Servicer nor the Special Servicer will be required to
consent to any amendment hereto without having first received an Opinion of
Counsel (at the Trust Fund's expense) to the effect that such amendment is
permitted hereunder and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee or any
other specified person in accordance with such amendment will not result in the
imposition of a tax on any portion of the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or the Grantor Trust or cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
each Companion Holder with respect to a Serviced Whole Loan and the Trustee and
shall furnish a copy of such amendment to each Rating Agency and any Rating
Agency rating any Companion Loan Securities.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 12.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates or any class of Companion Loan Securities.
(i) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Swap Counterparty or the Class A-2FL Certificates or the
rights of the Swap Counterparty under either Swap Contract or the rights of the
holders of the Class A-2FL Certificates without the consent of the Swap
Counterparty and 66?% of the Holders of the Class A-2FL Certificates. The
Trustee shall forward any proposed amendment to this Agreement to the Swap
Counterparty.
(j) Notwithstanding any other provision of this Agreement (other
than the next succeeding sentence), for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans. Any amendment contemplated by this Section 12.01 that adversely affects
the status of the Trust Fund as a "qualifying special purpose entity" under FASB
140 shall require consent of the Holders of Certificates entitled to at least
51% of the Voting Rights (without regard to Certificates held by the Depositor,
any Affiliate and/or agents of the Depositor, any Mortgage Loan Seller or any
Affiliate and/or agents of any Mortgage Loan Seller) and the consent of the
Directing Certificateholder.
Section 12.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 12.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as herein before provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class affected by the alleged
default evidencing not less than 25% of the related Percentage Interests in such
Class shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered
to the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for
60 days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights 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, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 12.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to the Trustee which shall be deemed to have been duly given
only when received), to: (i) in the case of the Depositor, X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (212)
834-6593; (ii) in the case of the Master Servicer, Wachovia Bank, National
Association, NC 1075, 0000 Xxxxxxxx Xxxxx XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000, Attention: Global Securities and Trust Services, X.X. Xxxxxx 2007-LDP11;
(iii) in the case of the Special Servicer, CWCapital Asset Management LLC, 000
Xxxxxxxxxx Xxxxxx, XX, Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attention: Xxxxx
Xxxxxxxxx (JPMCC-2007 LDP11), fax number (000) 000-0000, with a copy to
CWCapital Asset Management LLC, One Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx Xxxx (JPMCC-2007 LDP11), fax
number (000) 000-0000; (iv) in the case of the Trustee, LaSalle Bank National
Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Global Securities and Trust Services, X.X. Xxxxxx 2007-LDP11; (v) in
the case of the Rating Agencies, (a) Standard & Poor's Rating Services, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: CMBS Surveillance Group, fax
number: (000) 000-0000 and (b) Xxxxx'x Investors Services, Inc., 00 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance Group, fax number: (000) 000-0000; (vi) in the case of the Mortgage
Loan Sellers, (a) AIG Mortgage Capital, LLC, 0 XxxXxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxxxxx, fax number: (310)
000-0000, (b) Eurohypo AG, New York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, fax number: (000) 000-0000, (c)
JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx,
Managing Director, telecopy number: (000) 000-0000, (d) Nomura Credit & Capital,
Inc., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: N. Xxxxx XxXxxxx, fax number: (000) 000-0000, (e) Natixis Real Estate
Capital, Inc., 9 West 57th Avenue, New York, New York, Attention: Xxxxxx Xxxxx,
fax number: (000) 000-0000, and (f) UBS Real Estate Securities Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx, fax number:
(000) 000-0000 and Attention: Xxxxxxx X. Xxxxxx, fax number: (000) 000-0000; and
(vii) in the case of the initial Directing Certificateholder, American Capital
Strategies, Ltd, 0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention Xxxx Xxxxxx, fax number (000) 000-0000. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Accounts, the Distribution Accounts, the Gain-on-Sale Reserve
Account, the Interest Reserve Account and, if established, the REO Account, and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
Section 12.08 Successors and Assigns; Third Party Beneficiaries. (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. The Swap
Counterparty and each Mortgage Loan Seller and the Companion Holders (and their
agents and permitted successors and assigns, including any trustee or servicer
with respect to any Serviced Securitized Companion Loan or any other Companion
Loan) are intended third-party beneficiaries in respect of the respective rights
afforded them hereunder. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
(b) Each of the BACM 2007-3 Trustee, BACM 2007-3 Master Servicer and
BACM 2007-3 Special Servicer in respect to the JQH Hotel Portfolio Pari Passu
Companion Loan shall be a third-party beneficiary to this Agreement with respect
to its rights as specifically provided for herein and under the JQH Hotel
Portfolio Intercreditor Agreement.
Section 12.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 12.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency and the
Swap Counterparty (and any Rating Agency for any class of securities backed
wholly or partially by any Companion Loan to the extent applicable to the
Serviced Whole Loans) with respect to each of the following of which it has
actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Trustee, the Master
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement.
(b) The Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of any Certificate Accounts;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency (and any Rating
Agency for any class of securities backed wholly or partially by any Companion
Loan to the extent applicable to the Serviced Whole Loans) copies of inspection
reports and other items delivered to each of the Master Servicer and Special
Servicer pursuant to Sections 3.12(a) and 3.12(b).
(d) The Trustee shall promptly furnish notice to the Rating Agencies
of (i) any change in the location of the Distribution Accounts and (ii) the
final payment to any Class of Certificateholders.
(e) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency (and any Rating Agency for any
class of securities backed wholly or partially by any Companion Loan to the
extent applicable to the Serviced Whole Loans) with respect to each Mortgage
Loan such information as the Rating Agency shall reasonably request and which
the Trustee, the Master Servicer or Special Servicer, can reasonably provide in
accordance with applicable law and without waiving any attorney-client privilege
relating to such information or violating the terms of this Agreement or any
Mortgage Loan documents. The Trustee, the Master Servicer and Special Servicer,
as applicable, may include any reasonable disclaimer it deems appropriate with
respect to such information. Notwithstanding anything to the contrary herein,
nothing in this Section 12.10 shall require a party to provide duplicative
notices or copies to the Rating Agencies with respect to any of the above listed
items.
[End of Article XII]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP., Depositor
By:
--------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
By:
--------------------------------------
Name:
Title:
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer
By:
--------------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
By:
--------------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of July 2007, before me, a notary public in and for
said State, personally appeared _______________________ known to me to be a
________ of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________________
Notary Public
[SEAL]
My commission expires:
____________________________________
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2007, before me, a notary public in and for
said State, personally appeared _______________________ known to me to be a
________ of Wachovia Bank, National Association, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________________
Notary Public
[SEAL]
My commission expires:
____________________________________
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2007, before me, a notary public in and for
said State, personally appeared ___________________ known to me to be a
___________________ of CWCapital Asset Management LLC, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such limited liability company, and acknowledged to me that such limited
liability company executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________________
Notary Public
[SEAL]
My commission expires:
____________________________________
STATE OF )
) ss.:
COUNTY OF )
On the __ day of July 2007, before me, a notary public in and for
said State, personally appeared _______________________ known to me to be a
________ of LaSalle Bank National Association, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________________________
Notary Public
[SEAL]
My commission expires:
____________________________________
EXHIBIT A-1
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-1
THIS CLASS A-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [_]% MASTER SERVICER: WACHOVIA BANK,
NATIONAL ASSOCIATION
DENOMINATION: $62,183,000
SPECIAL SERVICER: CWCAPITAL ASSET
DATE OF POOLING AND SERVICING MANAGEMENT LLC
AGREEMENT: AS OF JULY 1, 2007
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: [_]
CLOSING DATE: JULY 5, 2007 ISIN NO.: [_]
FIRST DISTRIBUTION DATE: AUGUST 15, 2007 COMMON CODE NO.: [_]
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1-[--]
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $62,183,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-2
THIS CLASS A-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [_]% MASTER SERVICER: WACHOVIA BANK, NATIONAL
ASSOCIATION
DENOMINATION:
$[500,000,000][415,605,000] SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JULY 1, 2007 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: [_]
CLOSING DATE: JULY 5, 2007 ISIN NO.: [_]
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [_]
AUGUST 15, 2007
CERTIFICATE NO.: A-2-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $915,605,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-2FL
THIS CLASS A-2FL CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL
INTEREST IN A REMIC REGULAR INTEREST AND A SWAP CONTRACT AND CONSTITUTES AN
INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-2FL CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
PASS-THROUGH RATE: FLOATING IN MASTER SERVICERS: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPAITAL ASSET
DENOMINATION: $70,000,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: AUGUST 15, 2007 CERTIFICATE NO.: A-2FL-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-2FL CERTIFICATES
AS OF THE CLOSING DATE: $70,000,000
CLASS A-2FL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE CO-TRUSTEE, THE TRUSTEE OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-2FL Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Co-Trustee, the Master Servicers and the Special Servicer. A summary of certain
of the pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2FL Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Co-Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Class A-2FL Regular
Interest, the related Swap Contract and the related Floating Rate Account. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges in limited circumstances as provided in the Pooling
and Servicing Agreement. All sums distributable on this Certificate are payable
in the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (calculated on the basis of
the actual number of days in the month and assuming each year has 360 days)
during the applicable Interest Accrual Period relating to such Distribution Date
at the Class A-2FL Pass-Through Rate specified above on the Certificate Balance
of this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount equal to this Certificate's pro rata share of the Class A-2FL Available
Funds to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement. Distributions
in respect of the Class A-2FL Certificates may depend, in part, on payments from
the Swap Counterparty under the related Swap Contract as more specifically set
forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the
Distribution Accounts and the Floating Rate Account will be held on behalf of
the Trustee on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts
and the Floating Rate Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds in the Certificate Accounts will be
paid to the applicable Master Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Accounts shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2FL Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of $100,000 initial Certificate Balance, and
in integral multiples of $1 in excess thereof, with one Certificate of each such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Co-Trustee, the Master Servicers,
the Special Servicer and the Certificate Registrar and any of their agents may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Co-Trustee,
the Master Servicers, the Special Servicer, the Certificate Registrar nor any
such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer, the Co-Trustee and
the Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, or the Grantor Trust as a grantor trust at all
times any Certificate is outstanding or to avoid or minimize the risk of the
imposition of any tax on the Trust Fund or either the Lower-Tier REMIC, the
Middle Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against any of the Trust Fund, the Lower-Tier REMIC, the Middle-Tier REMIC
or the Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to
the effect that such action shall not adversely affect in any material respect
the interest of any Certificateholder and such action is necessary or desirable
to maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Middle-Tier REMIC, the Lower-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that such action
shall not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency and, in the case of the
Serviced Securitized Companion Loans, a Rating Agency rating any class of
Companion Loan Securities, to such effect; to amend or supplement any provision
of the Pooling and Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by each Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; provided that
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or Companion Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify the provisions of Section 3.05 and 3.19 (with respect to reimbursement of
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts) in the
Pooling and Servicing Agreement if the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has changed, in
order to conform to such industry standard, such modification does not adversely
affect the status of the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the
then-current ratings of any Class of Certificates or Companion Loan Securities;
and to implement the modifications to the Pooling and Servicing Agreement
contemplated in Section 7.01(a); provided further, that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller without the
consent of such Mortgage Loan Seller or adversely affects any Companion Holder
without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer, the Trustee
and the Co-Trustee with the consent of the Holders of Certificates representing
not less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee and the Trustee shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC, the Middle-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or result in the imposition of a
tax on either the Upper-Tier REMIC, the Middle-Tier REMIC or the Lower-Tier
REMIC or cause the Grantor Trust to fail to qualify as a grantor trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2FL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-3
THIS CLASS A-3 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [_]% MASTER SERVICER: WACHOVIA BANK,
NATIONAL ASSOCIATION
DENOMINATION: $[283,043,000]
SPECIAL SERVICER: CWCAPITAL ASSET
DATE OF POOLING AND SERVICING MANAGEMENT LLC
AGREEMENT: AS OF JULY 1, 2007
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: [_]
CLOSING DATE: JULY 5, 2007 ISIN NO.: [_]
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [_]
AUGUST 15, 2007
CERTIFICATE NO.: A-3-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $283,043,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-3 Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-4
THIS CLASS A-4 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [_]% MASTER SERVICER: WACHOVIA BANK,
NATIONAL ASSOCIATION
DENOMINATION: $[500,000,000]
[500,000,000][179,634,000] SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JULY 1, 2007 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [_]
DEFINED HEREIN)
ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007
COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE:
AUGUST 15, 2007 CERTIFICATE NO.: A-4-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $1,179,634,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-4 Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-SB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [_]% MASTER SERVICER: WACHOVIA BANK,
NATIONAL ASSOCIATION
DENOMINATION: $123,791,000
SPECIAL SERVICER: CWCAPITAL ASSET
DATE OF POOLING AND SERVICING MANAGEMENT LLC
AGREEMENT: AS OF JULY 1, 2007
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: [_]
CLOSING DATE: JULY 5, 2007 ISIN NO.: [_]
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [_]
AUGUST 15, 2007
CERTIFICATE NO.: A-SB-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-SB CERTIFICATES
AS OF THE CLOSING DATE: $123,791,000
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-SB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-SB Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-SB Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-SB Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Companion Loans, a Rating Agency rating
any class of Companion Loan Securities, to such effect; to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary to
maintain the rating or ratings assigned to each Class of Certificates by each
Rating Agency, as evidenced by a letter from each Rating Agency to such effect;
provided that such change shall not result in the downgrade, withdrawal or
qualification of the then-current rating assigned to any Class of Certificates
or Companion Loan Securities, as evidenced by a letter from each Rating Agency
to such effect; to modify the provisions of Section 3.05 and 3.19 (with respect
to reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates or Companion Loan Securities; and to implement the
modifications to the Pooling and Servicing Agreement contemplated in Section
7.01(a); provided further, that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller without the consent of such Mortgage
Loan Seller or adversely affect any Companion Holder without the consent of such
Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-1A
THIS CLASS A-1A CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: [_]% MASTER SERVICER: WACHOVIA BANK,
NATIONAL ASSOCIATION
DENOMINATION: $[500,000,000]
[500,000,000] [155,652,000] SPECIAL SERVICER: CWCAPITAL ASSET
MANAGEMENT LLC
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF JULY 1, 2007 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [_]
DEFINED HEREIN)
ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007
COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE:
AUGUST 15, 2007 CERTIFICATE NO.: A-1A-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $1,155,652,000
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-1A Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders or Companion
Holders, to cure any ambiguity to the extent it does not materially and
adversely affect the interests of any Certificateholder or Companion Holder; to
cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time
to time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee and the Trustee shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS X
THIS CLASS X CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS X
CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION:$ [500,000,000] MANAGEMENT LLC
[500,000,000] [500,000,000]
[500,000,000] [500,000,000] TRUSTEE: LASALLE BANK NATIONAL
[500,000,000] [500,000,000] ASSOCIATION
[500,000,000] [500,000,000]
[500,000,000] [414,154,806]
DATE OF POOLING AND SERVICING CUSIP NO.: [_]
AGREEMENT: AS OF JULY 1, 2007
ISIN NO.: [_]
CUT-OFF DATE: AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT (AS DEFINED COMMON CODE: [_]
HEREIN)
CERTIFICATE NO.: X-[--]
CLOSING DATE: JULY 5, 2007
FIRST DISTRIBUTION DATE:
AUGUST 15, 2007
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X CERTIFICATES AS OF THE
CLOSING DATE: $5,414,154,806
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class X Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class X Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount, and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-M
THIS CLASS A-M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[500,000,000][41,415,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: A-M-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES
AS OF THE CLOSING DATE: $541,415,000
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-M Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-M Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-M Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[426,365,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: A-J-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $426,365,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class A-J Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the , the Trustee
to make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon reduction of the Certificate Balances
of all the Certificates to zero (including, without limitation, any such final
payment resulting from a termination of the Trust Fund due to a sale of its
property) pursuant to the terms of the Pooling and Servicing Agreement. In no
event, however, will the Trust created by the Pooling and Servicing Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[33,839,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: B-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $33,839,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class B Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[81,212,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: C-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $81,212,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class C Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[54,141,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: D-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $54,141,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class D Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[27,071,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: E-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $27,071,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class E Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS F
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[47,374,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_]
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: F-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $47,374,000
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class F Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[54,142,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]1 [_](2) [](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [_](1) [_](2) [_](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_](1) [_](2)
FIRST DISTRIBUTION DATE:
AUGUST 15, 2007
CERTIFICATE NO.: G-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $54,142,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class G Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (4)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[67,676,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [_]1 [_](2) [](3)
POOLING AND SERVICING AGREEMENT
(AS DEFINED HEREIN) ISIN NO.: [_](1) [_](2) [_](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [_](1) [_](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: H-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $67,676,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class H Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (7)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[47,374,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: []1 [](2) [](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [](1) [](2) [](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [](1) [](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: J-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $47,374,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class J Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (10)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $74,445,000 MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: []1 [](2) [](12)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [](1) [](2) [US46630JAX72](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [](1) [](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: K-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $74,445,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this
Certificate in the Class K Certificates issued by the Trust Fund created
pursuant to the Pooling and Servicing Agreement, dated as of July 1, 2007 (the
"Pooling and Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (13)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[20,303,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [-]1 [-](2) [-](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [-](1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [-](1) [-](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: L-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $20,303,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (16)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[13,535,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [-]1 [-](2) [-](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [-](1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [-](1) [-](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: M-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $13,535,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (19)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[20,304,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [-]1 [-](2) [-](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [-](1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [-](1) [-](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: N-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $20,304,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the LR Certificates may, at
their option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (22)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[6,767,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [-]1 [-](2) [-](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [-](1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [-](1) [-](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: P-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $6,767,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class P Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS Q
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (25)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[13,536,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [-]1 [-](2) [-](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [-](1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [-](1) [-](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: Q-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $13,536,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class Q Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class Q
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class Q Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class Q Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS T
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS T CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (28)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[20,303,000] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [-]1 [-](2) [-](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [-](1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [-](1) [-](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: T-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS T CERTIFICATES
AS OF THE CLOSING DATE: $20,303,000
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS T CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class T Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class T
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class T Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class T Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS T CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND
THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN,
EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS
I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH
CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR REGISTRATION IN
THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE INITIAL PURCHASER OR
THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN
ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING AGREEMENT. THE
TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A BOOK ENTRY
CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON DESCRIBED IN
CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (31)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: WACHOVIA BANK,
ACCORDANCE WITH THE POOLING AND NATIONAL ASSOCIATION.
SERVICING AGREEMENT
SPECIAL SERVICER: CWCAPITAL ASSET
DENOMINATION: $[74,444,806] MANAGEMENT LLC
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF JULY 1, 2007 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [-]1 [-](2) [-](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [-](1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007 COMMON CODE NO.: [-](1) [-](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: NR-[--]
AUGUST 15, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $74,444,806
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THIS CERTIFICATE REPRESENTS AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101).
EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT.
PERCENTAGE INTEREST EVIDENCED BY MASTER SERVICER: WACHOVIA BANK,
THIS CERTIFICATE: 100% NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CWCAPITAL ASSET
AGREEMENT: AS OF JULY 1, 2007 MANAGEMENT LLC
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT ASSOCIATION
(AS DEFINED HEREIN)
CERTIFICATE NO.: S-[--]
CLOSING DATE: JULY 5, 2007
FIRST DISTRIBUTION DATE:
AUGUST 15, 2007
CLASS S PERCENTAGE INTEREST: 100%
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Excess Interest and the
Excess Interest Distribution Account. Each Holder of this Certificate, by
acceptance hereof, agrees to treat, and take no action inconsistent with the
treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
the Excess Interest then distributable, if any, allocable to the Class S
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to Excess Interest
collected on the Mortgage Loans, all as more specifically set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account and the Distribution Accounts will be held on
behalf of the Trustee on behalf of the Holders of Certificates specified in the
Pooling and Servicing Agreement and each Master Servicer (with respect to its
related Certificate Account) or the Trustee (with respect to the Distribution
Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Accounts will be paid to the Master
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Accounts shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
The Class S Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer of this Certificate,
the Transferor shall reimburse the Trust for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-28
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE REGISTRAR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: WACHOVIA BANK,
CERTIFICATE: 100% NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CWCAPITAL ASSET
AGREEMENT: AS OF JULY 1, 2007 MANAGEMENT LLC
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [-] (1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007
ISIN NO.: [-](1) [-](2) [-](3)
FIRST DISTRIBUTION DATE:
AUGUST 15, 2007 CERTIFICATE NO.: R-[--]
CLASS R PERCENTAGE INTEREST: 100%
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee in an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-29
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-LDP11, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE CERTIFICATE REGISTRAR TO THE EFFECT THAT,
AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS
DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR
OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: WACHOVIA BANK,
CERTIFICATE: 100% NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: CWCAPITAL ASSET
AGREEMENT: AS OF JULY 1, 2007 MANAGEMENT LLC
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: [-] (1) [-](2) [-](3)
CLOSING DATE: JULY 5, 2007
ISIN NO.: [-](1) [-](2) [-](3)
FIRST DISTRIBUTION DATE:
AUGUST 15, 2007 CERTIFICATE NO.: LR-[--]
CLASS LR PERCENTAGE INTEREST: 100%
---------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-LDP11,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-LDP11 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee in an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class LR Certificate to such proposed Transferee shall
be effected; and (D) Each Person holding or acquiring any Ownership Interest in
a Class LR Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class LR Certificate and (2) not to transfer its Ownership
Interest in such Class LR Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Companion Loan Securities by any Rating Agency, as evidenced by
a letter from such Rating Agency to such effect; to modify, eliminate or add to
the provisions of Section 5.02(c) of the Pooling and Servicing Agreement or any
other provision thereof restricting transfer of the Residual Certificates by
virtue of their being the REMIC "residual interests," and such change shall not,
as evidenced by an Opinion of Counsel, cause the Trust Fund, the Upper-Tier
REMIC, the Lower-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided, however, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interest of any Certificateholder not consenting thereto;
provided further, that such action shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from each Rating
Agency and, in the case of the Serviced Securitized Companion Loans, a Rating
Agency rating any class of Companion Loan Securities, to such effect; to amend
or supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Companion Loan Securities, as evidenced by a letter
from each Rating Agency to such effect; to modify the provisions of Section 3.05
and 3.19 (with respect to reimbursement of Nonrecoverable Advances and
Workout-Delayed Reimbursement Amounts) in the Pooling and Servicing Agreement if
the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion
of counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then-current ratings of any Class of Certificates or Companion Loan
Securities; and to implement the modifications to the Pooling and Servicing
Agreement contemplated in Section 7.01(a); provided further, that no such
amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller or adversely affects any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer and the Trustee
with the consent of the Holders of Certificates representing not less than 66
2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the
Holders of which are required to consent to any such amendment or remove
the requirement to obtain consent of the Companion Holders, in any such
case without the consent of the Holders of all Certificates of such Class
then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates
without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller
under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Companion Loan
Securities by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the the Class S and the Residual Certificates) for all of the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to the
terms of the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: July 5, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated:____________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
Attached
JPMCC 2007-LDP11
Mortgage Loan Schedule (Combined)
Loan # Originator Mortgagor Name Property Address City
------ ---------- -------------------------- ---------------------------------------------- ------------
12 AIG Michiana Owner, LLC Various Various
105 AIG BCP-Xxxxxx, LLC 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx
000 XXX Xxxxxx Xxx Holdings, LLC 40814, 40824 & 00000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx
189 AIG Commack Properties, LLC 000 & 000 Xxxxxxxx Xxxxxxxx Xxxxxxx (Xxx. 454) Commack
213 AIG D & R Chestnut Garage, LLC 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx
Loan # State Zip Code County Property Name Size Measure Interest Rate (%)
------ ------- -------- ----------- ----------------------------------- ----- -------------- -----------------
12 Various Various Various Denmark MHC Portfolio 3489 Pads 6.20600
105 CA 90028 Los Angeles Citizen News Building 49184 Square Feet 5.97000
135 MD 00000 Xx. Xxxx'x Xxxxx xx Xxxxxx Xxx 00000 Square Feet 5.91000
000 XX 00000 Suffolk 366 & 000 Xxxxxxxx Xxxxxxxx Xxxxxxx 00000 Xxxxxx Feet 5.98000
213 IL 60611 Xxxx Chestnut Parking Garage 133 Parking Spaces 6.07000
Loan # Net Mortgage Interest Rate Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date Amort. Term
------ -------------------------- ---------------- -------------- ---------- ---------- ----------------- -----------
12 6.18566 89,250,000 89,250,000 120 117 04/01/17 360
105 5.92966 10,000,000 10,000,000 60 54 01/01/12 360
135 5.83966 7,800,000 7,800,000 120 117 04/01/17 360
189 5.90966 5,000,000 5,000,000 120 117 04/01/17 360
213 6.04966 4,040,000 4,036,032 120 119 06/01/17 360
Loan # Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N) ARD Step Up (%) Title Type
------ ----------- -------------------- ------------------ ------------ --------- --------------- ----------
12 360 546,976 0.02000 Actual/360 No Fee
105 360 59,762 0.04000 Actual/360 No Fee
135 360 46,315 0.07000 Actual/360 No Fee
189 360 29,913 0.07000 Actual/360 No Fee
213 359 24,404 0.02000 Actual/360 No Fee
Loan # Crossed Loan Originator/Loan Seller Guarantor
------ ------------ ---------------------- ---------------------------------------------------------------
12 AIG D. Xxxx Xxxxxxx
105 AIG BCP-Xxxxxx, LLC, Brentwood Capital Partners I, LP
135 AIG Xxxxxxxxx Xxxxxxx Commerical Corporation
189 AIG Xxx X. Xxxxxx
000 XXX Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx
UPFRONT ESCROW
---------------------------------------------------------------------------------------------
Loan # Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve Upfront Envir. Reserve Upfront TI/LC Reserve
------ ---------------- --------------------- -------------------- ---------------------- ---------------------
12 No 3,835,000.00 165,000.00 0.00 0.00
105 No 0.00 0.00 0.00 0.00
135 No 0.00 0.00 0.00 115,469.00
189 No 0.00 0.00 0.00 0.00
213 No 0.00 0.00 0.00 0.00
UPFRONT ESCROW MONTHLY ESCROW
--------------------------------------------------------------------- ---------------------
Loan # Upfront RE Tax Reserve Upfront Ins. Reserve Upfront Other Reserve Monthly Capex Reserve
------ ---------------------- -------------------- --------------------- ---------------------
12 284,469.48 0.00 1,000,000.00 10167.50
105 42,559.80 0.00 0.00 1024.67
135 35,731.90 1,923.73 0.00 924.20
189 58,232.48 4,860.34 0.00 0.00
213 0.00 0.00 0.00 0.00
MONTHLY ESCROW
----------------------------------------------------------------------------------------------
Loan # Monthly Envir. Reserve Monthly TI/LC Reserve Monthly RE Tax Reserve Monthly Ins. Reserve
------ ---------------------- --------------------- ---------------------- --------------------
12 0.00 0.00 80329.40 0.00
105 0.00 2050.00 8717.07 0.00
135 0.00 0.00 3970.27 641.24
189 0.00 0.00 10093.63 1620.11
213 0.00 0.00 0.00 0.00
MONTHLY ESCROW
---------------------
Loan # Monthly Other Reserve Grace Period Lockbox In-place Property Type Defeasance Permitted
------ --------------------- ------------ ---------------- -------------------- --------------------
12 0.00 5 Yes Manufactured Housing No
105 0.00 0 No Office No
135 0.00 0 No Retail Yes
189 0.00 0 No Office Yes
213 0.00 5 No Parking Garage No
Loan # Interest Accrual Period Loan Group Final Maturity Date Remaining Amortization Term for Balloon Loans
------ ----------------------- ---------- ------------------- ---------------------------------------------
12 Actual/360 2 360
105 Actual/360 1 360
135 Actual/360 1 360
189 Actual/360 1 360
213 Actual/360 1 360
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11
------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Wachovia Bank, National Association, as Master Servicer,
CWCapital Asset Management LLC, as Special Servicer and, LaSalle Bank National
Association as Trustee, on behalf of the holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2007-LDP11, Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11 (the "Certificates") in connection with the
transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Balance of Class ___
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[_] The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to
bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased by
it for its own account or for one or more accounts (each of which is
an "institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust Fund for any costs incurred by it
in connection with this transfer.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Residual Certificate) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act or (iii) (other than with
respect to a Residual Certificate) pursuant to any other exemption from the
registration requirements of the Securities Act, subject in the case of clauses
(ii) and (iii) above to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate Registrar
of an opinion of counsel acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the Securities Act,
(y) the receipt by the Certificate Registrar of such other evidence acceptable
to the Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the Securities Act and other applicable laws and (z) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the Securities Act, by
reason of a specified exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the Purchaser's investment intent (or intent to resell to only certain investors
in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[_] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
[_] (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
[_] (b) by mailing a check or draft to the following address:
___________________________________________________________
___________________________________________________________
___________________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is (or
is permitted to be under the related partnership agreement) owned, directly or
indirectly, through one or more partnerships, trusts or other pass-through
entities by a non-U.S. Person.
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
Dated:
----------------------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS
AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of _________] [United States], on behalf
of which [he] [she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11, Class [R] [LR] Certificate (the "Class [R] [LR] Certificate")
is not a Disqualified Organization (as defined below) or an agent thereof
(including nominee, middleman or other similar person) (an "Agent"), or an ERISA
Prohibited Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause any of the [Upper-Tier REMIC], [the
Lower-Tier REMIC] to fail to qualify as a REMIC, or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are (or are permitted to be
under the related partnership agreement) owned, directly or indirectly (other
than through a U.S. corporation), through any partnership, trust or other
pass-through entity, by any person that is a Non-U.S. Person. In addition, the
Transferee is a Permitted Transferee.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
(as defined below) certifying that it has no actual knowledge that such Person
or entity is a Disqualified Organization, or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person and that it has no reason to know that
such Person or entity does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated July 1, 2007, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer and, LaSalle Bank National Association as Trustee (the "Pooling and
Servicing Agreement"), as may be required to further effectuate the restrictions
on transfer of the Class [R] [LR] Certificate to such a Disqualified
Organization, or an Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee agrees
to act as "tax matters person" and to perform the functions of "tax matters
person" of [the Upper-Tier REMIC], [the Lower-Tier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and, in such event, agrees to
the irrevocable designation of the Trustee as the Transferee's agent in
performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class [R]
[LR] Certificate to be attributable to, a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other U.S. person.
11. Check one of the following:
[_] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R] [LR] Certificate;
(ii) the present value of the expected future
distributions on such Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[_] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this
instrument to be executed on its behalf, by its [Title of Officer] this
_____ day of __________, 20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that [he] [she] executed the same as [his] [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11
----------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the affidavit of [Transferee] related to
the transfer of the [Class R and Class LR] Certificates, and has no actual
knowledge that such affidavit is not true and has no reason to know that the
requirements set forth in paragraphs 3, 4 and 10 thereof are not satisfied or,
after conducting a reasonable investigation of the financial condition of the
transferee, that the information contained in paragraphs 3, 4 and 10 thereof is
not true.
Very truly yours,
[Transferor]
_____________________________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11, REQUEST FOR RELEASE
----------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated July 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Wachovia Bank,
National Association, as master servicer and CWCapital Asset Management LLC, as
special servicer, and you, as Trustee, the undersigned hereby requests a release
of the Mortgage File (or the portion thereof specified below) held by or on
behalf of you as Trustee with respect to the following described Mortgage Loan
for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Master Servicer]
[Special Servicer] hereby certifies that all amounts
received in connection with the Mortgage Loan have been
or will be credited to the applicable Certificate
Account pursuant to the Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER] [SPECIAL
SERVICER]
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11
------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-LDP11, Commercial Mortgage Pass-Through Certificates, Series
2007-LDP11, Class __ (the "Certificate") issued pursuant to that certain Pooling
and Servicing Agreement, dated July 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as depositor ("Depositor"), Wachovia Bank, National Association, as
master servicer ("Master Servicer"), CWCapital Asset Management LLC, as special
servicer ("Special Servicer") and, LaSalle Bank National Association, as trustee
("Trustee"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a governmental plan (as
defined in Section 3(32) of ERISA) or a church plan (as defined in Section
3(33) of ERISA) for which no election has been made under Section 410(d) of
the Code, subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or
the Code (each a "Plan") or (b) a person acting on behalf of or using the
assets of any such Plan (including an entity whose underlying assets
include Plan assets by reason of investment in the entity by such a Plan or
Plans and the application of Department of Labor Regulation ss.
2510.3-101), other than an insurance company using the assets of its
"insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption ("PTCE") 95-60) under
circumstances whereby the purchase and holding of Offered Private
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of
PTCE 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to
the Certificate Registrar an Opinion of Counsel in form and substance
satisfactory to the Certificate Registrar and the Depositor to the effect
that the acquisition and holding of such Certificate by such purchaser or
transferee will not constitute or result in a non-exempt "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Master Servicer, the Special Servicer, the Dealers or the Depositor to
any obligation or liability (including obligations or liabilities under
ERISA, Section 4975 of the Code or any such Similar Law) in addition to
those set forth in the Pooling and Servicing Agreement, which Opinion of
Counsel shall not be at the expense of the Depositor, the Master Servicer,
the Special Servicer, the Dealers, the Certificate Registrar or the Trust
Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex C to the Prospectus Supplement dated June 28, 2007]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT ASSIGNOR]
(the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto LaSalle Bank National Association, as Trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates, Series 2007-LDP11"
(the "Assignee"), having an office at LaSalle Bank National Association, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global
Securities and Trust Services - JPMorgan 2007-LDP11, its successors and assigns,
all right, title and interest of the Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By: ____________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11 Class [__]
-------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated July 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, Wachovia Bank, National Association, as Master Servicer,
CWCapital Asset Management LLC, as Special Servicer and LaSalle Bank National
Association, as Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance] [Notional Amount]of Certificates, in fully registered form (each, a
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11 Class [__]
----------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated July 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, Wachovia Bank, National Association, as master servicer,
CWCapital Asset Management LLC, as special servicer and LaSalle Bank National
Association, as trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance][Notional Amount] of Certificates, in fully registered form (each, a
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
---------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 0000-XXX00
Xxxxxxxx Bank, National Association
0000 Xxxxxxxx Xxxxx - URP4, NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Trus 2007-LDP11,
Commercial Mortgage Pass-Through Certificates, Series 0000-XXX00
XXXxxxxxx Asset Management LLC
000 Xxxxxxxxxx Xxxxxx, XX Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: JPMorgan 2007-LDP11
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11 Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11
---------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement, dated July 1, 2007 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Wachovia Bank, National Association, as master servicer ("Master
Servicer"), CWCapital Asset Management LLC, as special servicer ("Special
Servicer") and LaSalle Bank National Association, as trustee ("Trustee").
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
Master Servicer in exchange for the release of the Mortgage Loan, the related
Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicer with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan [__], together with such other
documents or instruments as the Master Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicer's notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:____________________________________
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby
acknowledges and affirms that it transferred its Purchase Option to the
Option Holder identified above on [_________].
[_______________________]
By:____________________________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11 Class [__]
-------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated July 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, Wachovia Bank,
National Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer and LaSalle Bank National Association, as Trustee, on behalf of
the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates, Series 2007-LDP11.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
FORM OF NOTICE RELATING TO THE JQH HOTEL PORTFOLIO MORTGAGE LOAN
[Date]
JQH HOTEL PORTFOLIO MORTGAGE LOAN
VIA FEDERAL EXPRESS
-------------------
Bank of America, National Association
Attention: [__________________]
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11
----------------------------------------------------------
Dear [_____________]:
Bank of America, National Association is the master servicer (the
"JQH Hotel Portfolio Master Servicer") for the JQH Hotel Portfolio Whole Loan,
as such term is defined under the Pooling and Servicing Agreement dated July 1,
0000 (xxx "XXX00 Xxxxxxx Agreement") by and among X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., as depositor, Wachovia Bank, National Association, as
Master Servicer, CWCapital Asset Management LLC, as Special Servicer and LaSalle
Bank National Association, as Trustee, a copy of which is included with this
letter. The Trustee hereby directs the JQH Hotel Portfolio Master Servicer, as
follows:
The JQH Hotel Portfolio Master Servicer shall remit to the
applicable LDP11 Master Servicer all amounts payable to, and forward, deliver or
otherwise make available, as the case may be, to the LDP11 Master Servicer all
reports, statements, documents, communications, and other information that are
to be forwarded, delivered or otherwise made available to, the holder of the JQH
Hotel Portfolio Mortgage Loan (as such term is defined in the XXX00 Xxxxxxx
Agreement) under the Intercreditor Agreement dated as of July 5, 2007 by and
between Eurohypo AG, New York Branch, as the Lead Lender, and Eurohypo AG, New
York Branch, as Co-Lender, and the Pooling and Servicing Agreement to be entered
into among Banc of America Commercial Mortgage Inc., as depositor, Bank of
America, National Association, as master servicer, Midland Loan Services, Inc. ,
as special servicer and Xxxxx Fargo Bank, N.A., as trustee and REMIC
administrator, as from time to time amended, supplemented or modified relating
to the issuance of the relating to the issuance of the Banc of America
Commercial Mortgage, Inc., Commercial Mortgage Pass-Through Certificate, Series
2007-3.
The contact information for the Trustee, Master Servicer and the
Special Servicer is set forth below:
Trustee: LaSalle Bank National Association, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Attention: Global Securities and Trust Services, X.X. Xxxxxx 2007-LDP11.
Master Servicer: Wachovia Bank, National Association, NC
1075, 0000 Xxxxxxxx Xxxxx XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000,
Attention: Global Securities and Trust Services, X.X. Xxxxxx 2007-LDP11
Special Servicer: CWCapital Asset Management LLC, 000
Xxxxxxxxxx Xxxxxx, XX, Xxxxx 0000, Xxxxxxxxxx, XX 00000.
Thank you for your attention to this matter.
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee for the Holders of the X.X.
Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11,
Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11.
Date: _________________________
LASALLE BANK NATIONAL ASSOCIATION
By: ___________________________
[Name]
[Title]
EXHIBIT M
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11, Class [__]
--------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated July 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, Wachovia Bank,
National Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer and, LaSalle Bank National Association as Trustee, on behalf of
the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates, Series 2007-LDP11.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE TO RULE 144A GLOBAL
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11, Class[__]
-------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated July 1, 2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor, Wachovia Bank,
National Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer and, LaSalle Bank National Association as Trustee, on behalf of
the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates, Series 2007-LDP11.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer,
the Special Servicer, the Trustee and Initial Purchaser of the offering of the
Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
* Select appropriate depository.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage
Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11, Class [__]
--------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated July 1, 2007 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Wachovia Bank, National Association, as Master Servicer,
CWCapital Asset Management LLC, as Special Servicer and, LaSalle Bank National
Association as Trustee, on behalf of the holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2007-LDP11, Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11 in connection with the transfer by
_______________ of a beneficial interest of $___________ [Certificate Balance]
[Notional Amount] in a Book-Entry Certificate during the Restricted Period to
the undersigned (the "Transferee"). The Transferee desires to beneficially own
such transferred interest in the form of the Regulation S Book-Entry
Certificate. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT P
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
-------------
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP11
Commercial Mortgage Pass-Through Certificates
Series 2007-LDP11 (the "Trust")
I, [identifying the certifying individual], the President and Chief
Executive Officer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
the depositor into the above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on
Form 10-D required to be filed in respect of the period covered by this
annual report on Form 10-K, of the Trust (the "Exchange Act Periodic
Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period
covered by this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statements required
in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Reports, the master servicer and
the special servicer have fulfilled their obligations under the Pooling
and Servicing Agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing criteria
and their related attestation reports on assessment of compliance with
servicing criteria required to be included in this report in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this
report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Wachovia Bank, National
Association, CWCapital Asset Management LLC, LaSalle Bank National
Association, Bank of America, National Association, Midland Loan Services,
Inc. and Xxxxx Fargo Bank, N.A.
Date:_________________________
By:______________________________________
President and Chief Executive Officer
X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp.
EXHIBIT Q-1
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY TRUSTEE
CERTIFICATION
-------------
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11 (the "Trust"), issued pursuant to that
certain Pooling and Servicing Agreement, dated as of July 1,
2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp, as depositor
(the "Depositor"), Wachovia Bank, National Association, as
master servicer ("Master Servicer"), CWCapital Asset Management
LLC, as special servicer ("Special Servicer") and, LaSalle Bank
National Association as trustee ("Trustee")
I, [identify the certifying individual], a [title] of
LaSalle Bank National Association, on behalf of LaSalle Bank National
Association, certify to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp. and its officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification in delivering the
Certification required by the Pooling and Servicing Agreement relating to the
Certificates (capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement), that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
20__, and all reports on Form 10-D required to be filed in respect of
periods covered by that annual report on Form 10-K, of the Trust (the
"Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by the Annual Report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided to the paying agent by the master
servicer and the special servicer under the Pooling and Servicing
Agreement for inclusion in the Exchange Act Periodic Reports is
included in such reports;
4. I am responsible for reviewing the activities performed by the Trustee
and based on my knowledge and the compliance reviews conducted in
preparing the Trustee compliance statements required for inclusion on
Form 10-K pursuant to Item 1123 of Regulation AB, and except as
disclosed on any Form 10-D or 10-K, the Trustee has fulfilled its
obligations in all material respects under the Pooling and Servicing
Agreement; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Paying Agent in accordance
with Section 11.10 and Section 11.11 of the Pooling and Servicing
Agreement discloses, with respect to the Trustee, all material
instances of noncompliance with the Relevant Servicing Criteria and
such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:_________________________
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
By:_______________________________________
[Name]
[Title]
EXHIBIT Q-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER
CERTIFICATION
-------------
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11 (the "Trust"), issued pursuant to that
certain Pooling and Servicing Agreement, dated as of July 1,
2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp, as depositor
(the "Depositor"), Wachovia Bank, National Association, as
master servicer ("Master Servicer"), CWCapital Asset Management
LLC, as special servicer ("Special Servicer") and, LaSalle Bank
National Association as trustee ("Trustee")
I, [identify the certifying individual], a [title] of
Wachovia Bank, National Association, on behalf of Wachovia Bank, National
Association, certify to X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp. and its officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification in delivering the
Certification required by the Pooling and Servicing Agreement relating to the
Certificates (capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Pooling and Servicing Agreement), that:
1. I have reviewed the servicing reports relating to the trust fund
delivered by the Master Servicer to the Trustee covering the fiscal
year 20__.
2. Based on my knowledge, the servicing information in the servicing
reports, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered
by these servicing reports;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer under the Pooling and
Servicing Agreement for inclusion in the reports to be filed by the
Trustee is included in the servicing reports delivered by the Master
Servicer to the Trustee;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the Pooling and
Servicing Agreement with respect to the Master Servicer, and except as
disclosed in such compliance statement delivered by the Master Servicer
under Section 11.09 of the Pooling and Servicing Agreement, the Master
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects in the year to which such review
applies; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and
Section 11.11 of the Pooling and Servicing Agreement discloses all
material instances of noncompliance with the Relevant Servicing
Criteria and such assessment of compliance with servicing criteria is
fairly stated in all material respects.
Date:_________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
By:______________________________________
[Name]
[Title]
EXHIBIT Q-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
-------------
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11 (the "Trust"), issued pursuant to that
certain Pooling and Servicing Agreement, dated as of July 1,
2007 (the "Pooling and Servicing Agreement"), by and among X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp, as depositor
(the "Depositor"), Wachovia Bank, National Association, as
master servicer ("Master Servicer"), CWCapital Asset Management
LLC, as special servicer ("Special Servicer") and, LaSalle Bank
National Association as trustee ("Trustee")
I, [identify the certifying individual], a [title] of
CWCapital Asset Management LLC, on behalf of CWCapital Asset Management LLC,
certify to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Wachovia
Bank, National Association and their officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification in
delivering the Certification required by the Pooling and Servicing Agreement
relating to the Certificates (capitalized terms used herein without
definition shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement), that:
1. I have reviewed the servicing reports relating to the trust fund
delivered by the Special Servicer to the Master Servicers covering the
fiscal year 20_ _;
2. Based on my knowledge, the servicing information in the servicing
reports taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered
by these servicing reports;
3. Based on my knowledge, the servicing information required to be
provided to the Master Servicer by the Special Servicer under the
Pooling and Servicing Agreement for inclusion in the reports to be
filed by the Trustee is included in the servicing reports delivered by
the Special Servicer to the Master Servicer;
4. I am responsible for reviewing the activities performed by the Special
Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the Pooling and
Servicing Agreement with respect to the Special Servicer, and except as
disclosed in such compliance statement delivered by the Special
Servicer under Section 11.09 of the Pooling and Servicing Agreement,
the Special Servicer has fulfilled its obligations under the Pooling
and Servicing Agreement in all material respects in the year to which
such review applies; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Special Servicer in accordance
with Section 11.10 and Section 11.11 of the Pooling and Servicing
Agreement discloses, with respect to the Special Servicer, all material
instances of noncompliance with the Relevant Servicing Criteria and
such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:_________________________
CWCAPITAL ASSET MANAGEMENT LLC
By:______________________________________
[Name]
[Title]
EXHIBIT R
INITIAL COMPANION HOLDERS
Greenwich Capital Financial Products, Inc. shall be the initial
Companion Holder with respect to the Xxxxxxxx Xxxxx Pari Passu
Companion Loan.
Eurohypo AG, New York Branch shall be the initial Companion Holder with respect
to the JQH Portfolio Pari Passu Companion Loan.
JPMorgan Chase Bank, N.A. shall be the initial Companion Holder with respect to
the Carespring Portfolio A-1 Pari Passu Companion Loan.
JPMorgan Chase Bank, N.A. shall be the initial Companion Holder with respect to
the Carespring Portfolio A-2 Pari Passu Companion Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Beavercreek, OH Pari Passu
Companion Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Decatur, AL Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Huntsville, AL Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Flowood, MS Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Bowling Green, KY Pari Passu
Companion Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Savannah, GA Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Murfreesboro, TN Pari Passu
Companion Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-West Monroe, LA Pari Passu
Companion Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Gallatin, TN Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Canton, MI Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Fort Oglethorpe, GA Pari Passu
Companion Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Oxford, AL Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Evansville, IN Pari Passu Companion
Loan.
Natixis Real Estate Capital Inc. shall be the initial Companion Holder
with respect to the Xxxxx Portfolio-Austin, TX Pari Passu Companion
Loan.
EXHIBIT S
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services - JPMorgan 2007-LDP11
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11
----------------------------------------------------------
Pursuant to the Pooling and Servicing Agreement, dated as of July 1,
2007 (the "Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as Master
Servicer, CWCapital Asset Management LLC, as Special Servicer and, LaSalle Bank
National Association as Trustee, with respect to the X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust 2007-LDP11, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP11 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Trustee's Internet Website pursuant to Section 4.02 of the
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in evaluating the
Information), and such Information will not, without the prior written consent
of the Trustee, be disclosed by the undersigned or by its officers, directors,
partners employees, agents or representatives in any manner whatsoever, in whole
or in part; provided that the undersigned may provide all or any part of the
Information to any other person or entity that is contemplating the purchase of
any Certificate, but only if such person or entity confirms in writing such
prospective ownership interest and agrees to keep it confidential; and provided
that the undersigned may provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER] [PROSPECTIVE
PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT T
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP11, Commercial Mortgage Pass-Through Certificates,
Series 2007-LDP11
----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling Servicing Agreement,
dated as of July 1, 2007 (the "Agreement"), by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer and, LaSalle Bank National Association as Trustee, the undersigned, as
Trustee, hereby certifies that, except as noted on the attached Trustee
Exception Report, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or for which a Liquidation Event has
occurred) the Trustee has, subject to Section 2.02(e) of the Agreement, reviewed
the documents delivered to it pursuant to Section 2.01 of the Agreement and has
determined that (i) all documents specified in clauses (i) through (v), (ix)
through (xii) and (xvi) (or, with respect to clause (xvi), a copy of such letter
of credit and the required officer's certificate), if any, of the definition of
"Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Agreement.
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee
By:____________________________________
Name:
Title:
EXHIBIT U
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the referenced party shall
address, at a minimum, the criteria identified below as "Relevant Servicing
Criteria":
--------------------------------------------------------------------------------------------
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
--------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Trustee
performance or other triggers and events of default in Master Servicer
accordance with the transaction agreements. Special Servicer
--------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to Trustee
third parties, policies and procedures are instituted Master Servicer
to monitor the third party's performance and Special Servicer
compliance with such servicing activities.
--------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to N/A
maintain a back-up servicer for the mortgage loans are
maintained.
--------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Master Servicer
effect on the party participating in the servicing Special Servicer
function throughout the reporting period in the amount Custodian
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
--------------------------------------------------------------------------------------------
Cash Collection and Administration
--------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the Trustee
appropriate custodial bank accounts and related bank Master Servicer
clearing accounts no more than two business days Special Servicer
following receipt, or such other number of days
specified in the transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an Trustee
obligor or to an investor are made only by authorized
personnel.
--------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, Master Servicer
cash flows or distributions, and any interest or other Special Servicer
fees charged for such advances, are made, reviewed and Trustee
approved as specified in the transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash Trustee
reserve accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained Special Servicer
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally Trustee
insured depository institution as set forth in the Master Servicer
transaction agreements. For purposes of this Special Servicer
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
--------------------------------------------------------------------------------------------
Trustee
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Master Servicer
unauthorized access. Special Servicer
--------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for Trustee
all asset-backed securities related bank accounts, Master Servicer
including custodial accounts and related bank clearing Special Servicer
accounts. These reconciliations are (A) mathematically
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
(D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days
of their original identification, or such other number
of days specified in the transaction agreements.
--------------------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with Trustee
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Reporting Servicer.
--------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Trustee
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within Trustee
two business days to the Servicer's investor records,
or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports Trustee
agree with cancelled checks, or other form of payment,
or custodial bank statements.
--------------------------------------------------------------------------------------------
Pool Asset Administration
--------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained Trustee
as required by the transaction agreements or related Master Servicer
mortgage loan documents. Special Servicer
--------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Trustee
required by the transaction agreements
--------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset Trustee
pool are made, reviewed and approved in accordance Master Servicer
with any conditions or requirements in the transaction Special Servicer
agreements.
--------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan Master Servicer
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
--------------------------------------------------------------------------------------------
1122(d)(4)(v) The Reporting Servicer's records regarding the Master Servicer
mortgage loans agree with the Reporting Servicer's
records with respect to an obligor's unpaid principal
balance.
--------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an Master Servicer
obligor's mortgage loans (e.g., loan modifications or Special Servicer
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
--------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance Special Servicer
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
the transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained Master Servicer
during the period a mortgage loan is delinquent in Special Servicer
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
--------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for Master Servicer
mortgage loans with variable rates are computed based
on the related mortgage loan documents.
--------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such Master Servicer
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of
days specified in the transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or Master Servicer
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 other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any Master Servicer
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
--------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted Master Servicer
within two business days to the obligor's records
maintained by the servicer, or such other number of
days specified in the transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts Master Servicer
are recognized and recorded in accordance with the
transaction agreements.
--------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified N/A
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
--------------------------------------------------------------------------------------------
[NAME OF REPORTING SERVICER]
Date: _____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
EXHIBIT V
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance Trustee
Information Depositor
Any information required by Item 1121 of
Regulation AB which is NOT included on the
Monthly Statement
--------------------------------------------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Pooling and
Servicing Agreement (as to themselves),
per Item 1117 of Regulation AB (to the extent (ii) as to litigation to which they
material to Certificateholders) respectively have knowledge, the Trustee,
the Master Servicer and the Special
Servicer as to the issuing entity (in the
case of the Master Servicer and the Special
Servicer, to be reported by the party
controlling such litigation pursuant to
Section 3.34 of the Pooling and Servicing
Agreement), (iii) the Depositor as to the
sponsors, any 1110(b) originator, and any
1100(d)(1) party
--------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
--------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Trustee
--------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Trustee
Security Holders
--------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
--------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Depositor (The Depositor will request from
Information the Swap Counterparty such financial
information as described in Part 5
paragraph (m)(ii) of the Schedule of the
Swap Contract)
--------------------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for disclosure items
on Form 8-K
--------------------------------------------------------------------------------------------
Item 9: Exhibits Trustee
Depositor
--------------------------------------------------------------------------------------------
EXHIBIT W
ADDITIONAL FORM 10-K DISCLOSURE
--------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
--------------------------------------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items
on Form 8-K
--------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
--------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Pooling and
Servicing Agreement (as to themselves),
Disclosure per Item 1117 of Regulation AB (to (ii) as to litigation to which they
the extent material to Certificateholders) respectively have knowledge, the Trustee,
the Master Servicer and the Special
Servicer as to the issuing entity (in the
case of the Master Servicer and the Special
Servicer, to be reported by the party
controlling such litigation pursuant to
Section 3.34 of the Pooling and Servicing
Agreement), (iii) the Depositor as to the
sponsor, any 1110(b) originator and any
1100(d)(1) party
--------------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1119 of Regulation AB Servicing Agreement as to themselves, (ii)
the Depositor as to the sponsor,
originator, significant obligor,
enhancement or support provider
--------------------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Item 1112(b) of Regulation AB
--------------------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of
Regulation AB
--------------------------------------------------------------------------------------------
EXHIBIT X
FORM 8-K DISCLOSURE INFORMATION
--------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
--------------------------------------------------------------------------------------------
Item 1.01: Entry into a Material Definitive All parties (only as to agreements such
Agreement entity is a party to or entered into on
behalf of the Trust Fund)
--------------------------------------------------------------------------------------------
Item 1.02: Termination of a Material All parties (only as to agreements such
Definitive Agreement entity is a party to or entered into on
behalf of the Trust Fund)
--------------------------------------------------------------------------------------------
Item 1.03: Bankruptcy or Receivership Depositor
--------------------------------------------------------------------------------------------
Item 2.04: Triggering Events that Accelerate Depositor
or Increase a Direct Financial Obligation or
an Obligation under an Off-Balance Sheet
Arrangement
--------------------------------------------------------------------------------------------
Item 3.03: Material Modification to Rights of Trustee
Security Holders
--------------------------------------------------------------------------------------------
Item 5.03: Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal Year
--------------------------------------------------------------------------------------------
Item 6.01: ABS Informational and Computational Depositor
Material
--------------------------------------------------------------------------------------------
Item 6.02: Change of Master Servicer, Special Master Servicer
Servicer or Trustee Special Servicer
Trustee
Depositor
--------------------------------------------------------------------------------------------
Item 6.03: Change in Credit Enhancement or Depositor
External Support Trustee
--------------------------------------------------------------------------------------------
Item 6.04: Failure to Make a Required Trustee
Distribution
--------------------------------------------------------------------------------------------
Item 6.05: Securities Act Updating Disclosure Depositor
--------------------------------------------------------------------------------------------
Item 7.01: Regulation FD Disclosure Depositor
--------------------------------------------------------------------------------------------
Item 8.01 Depositor
--------------------------------------------------------------------------------------------
Item 9.01 Depositor
--------------------------------------------------------------------------------------------
EXHIBIT Y
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO (000) 000-0000 AND VIA E-MAIL TO LaSalle Bank National
Association at xxxxx@xxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services-X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2007-LDP11, Commercial Mortgage Pass-Through
Certificates, Series 2007-LDP11-SEC REPORT PROCESSING
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx and Xxxxxx Xxxxx
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [__] of the Pooling and Servicing
Agreement, dated as of July 1, 2007, by and among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as depositor, Wachovia Bank, National
Association, as master servicer, CWCapital Asset Management LLC, as special
servicer and, LaSalle Bank National Association as trustee, the undersigned,
as [__________], hereby notifies you that certain events have come to our
attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
------------------------------------------------------------
List of any Attachments hereto to be included in the Additional
---------------------------------------------------------------
Form [10-D][10-K][8-K] Disclosure:
----------------------------------
Any inquiries related to this notification should be directed to
[___________________________], phone number: [______________]; e-mail
address: [_____________________].
[NAME OF PARTY],
as [role]
By: __________________________________
Name:
Title:
EXHIBIT Z
SERVICING AND SUBSERVICING AGREEMENTS
Certain of the Mortgage Loans are subject to subservicing agreements as
set forth below.
--------------------------------------------------------------------------------
Property Name Subservicer Name
--------------------------------------------------------------------------------
Greenway Station LJ Melody & Company
--------------------------------------------------------------------------------
Swedesford Plaza Capmark Finance Inc.
--------------------------------------------------------------------------------
Embassy Suites Hotel & Executive
Meeting Center Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
--------------------------------------------------------------------------------
Xxx XxXxxxxx Drive Center Columbia National
--------------------------------------------------------------------------------
Cinemark Valley View Pinnacle Financial Group, Inc.
--------------------------------------------------------------------------------
The River Inn Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
--------------------------------------------------------------------------------
Washington Commons LJ Melody & Company
--------------------------------------------------------------------------------
Volusia Marketplace Collateral Mortgage Capital
--------------------------------------------------------------------------------
Shoppes of Xxxxxxxx Xxxx Collateral Mortgage Capital
--------------------------------------------------------------------------------
Sweetwater Apartments Capmark
--------------------------------------------------------------------------------
Colonial Bank Plaza Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
--------------------------------------------------------------------------------
Citizen News Building Xxxxx-Xxxxxxx
--------------------------------------------------------------------------------
Four Points by Sheraton Capmark Finance Inc.
--------------------------------------------------------------------------------
Sunset Ridge Apartments Collateral Mortgage Capital
--------------------------------------------------------------------------------
Shops at Breton Bay Xxxxxx & Dunlop
--------------------------------------------------------------------------------
Comfort Suites Downtown Laureate Capital LLC
--------------------------------------------------------------------------------
Hunter's Crossing Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
--------------------------------------------------------------------------------
Fairmont and Monticello Capmark Finance Inc.
--------------------------------------------------------------------------------
Xxxxxxx Inn Columbia Laureate Capital LLC
--------------------------------------------------------------------------------
Santa Xxx Inland Commercial Mortgage Corp
--------------------------------------------------------------------------------
Skee's Industrial Xxxxx Fargo RE Capital Markets
--------------------------------------------------------------------------------
Xxxxxxx Building Green Park Financial
--------------------------------------------------------------------------------
Country Inn & Suites - Champaign, IL Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
--------------------------------------------------------------------------------
Country Inn & Suites - Bloomington, IL Xxxxxxxx Xxxxxxxx Xxxxxx, X.X.
--------------------------------------------------------------------------------
Lofts of Broadway Capstone Realty Advisors
--------------------------------------------------------------------------------
Hidden Park Apartments Capmark Finance Inc.
--------------------------------------------------------------------------------
366 & 368 Veterans Memorial Highway M Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------
The Executive Building - Cin. Oh LJ Melody & Company
--------------------------------------------------------------------------------
Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxx
Xxxx, XX Laureate Capital
--------------------------------------------------------------------------------
Xxxxxxx Commerce Center NorthMarq Capital
--------------------------------------------------------------------------------
Spiral Plaza Capmark Finance Inc.
--------------------------------------------------------------------------------
000 Xxxxxxxxxxx Xxxx XXXX - Melody - Servicers
--------------------------------------------------------------------------------
Six Forks - Raleigh Laureate Capital LLC
--------------------------------------------------------------------------------
1550 North Congress Xxxxx Fargo RE Capital Markets
--------------------------------------------------------------------------------
Century Drive - Raleigh Laureate Capital LLC
--------------------------------------------------------------------------------
EXHIBIT AA
SWAP CONTRACT RELATED TO THE CLASS A-2FL CERTIFICATES
[See Tabs 32-34.]
EXHIBIT BB
RELEASE OVERSIGHT LOANS
Loan # Property Name
1 GSA Portfolio
2 Maple Drive Portfolio
4 Save Mart Portfolio
7 Hyatt Regency - Jacksonville
8 Americold Portfolio
10 ChampionsGate Hotel
11 Lembi Portfolio
12 Denmark MHC Portfolio
13 Stadium Towers
25 JQH Hotel Portfolio
31 The Mill
38 Michaels Industrial
39 Carespring Portfolio
53 Xxxxxx Xxxxx 4
69 400-1 / 400-2 Xxxxxx Pond
75 Hempstead Retail
93 Highlands Overlook
104 Xxxxxxxx Multifamily Portfolio
000 Xxxxx Xxxxx
000 Xxxx Xxxxx Xxxxxxxxxx
000 000 Xxxxx Xxxxxxxxx & 000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
237 Six Forks - Raleigh
000 Xxxxx Xxxxxxxx Xxxxx Portfolio
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxx, XX
000 Xxxxxxx Xxxxx - Raleigh
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxxx Xxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxx Xxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxx Xxxxxxxxxx, XX
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
264 Xxxxx Portfolio-Evansville, IN
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
EXHIBIT CC
TENANTS-IN-COMMON OVERSIGHT LOANS
Loan Number Property Name
42 Sheraton Oklahoma City
71 Park Oaks Shopping Center
75 Hempstead Retail
87 Exposition Marketplace
94 Worthington on the Beltway
00 Xxxxxxxxx Xxxxx Xxxxxxxxx
115 Four Points by Sheraton
118 Valencia Industrial
000 Xxxxxxxxxxxx Xxxxxxxx Xxxxxx
126 Southgate Shopping Center
000 Xxxxxx Xxxxx Xxxxxxxxxx
136 AT&T Chicago
157 Orem Center
175 Rite Aid Portfolio
185 Lakewood City Center
206 Ashley Self Storage
228 Rite Aid - Xxxxxxxx
238 Rite Aid - Xxxxxxx
243 Rite Aid - Emporium
000 Xxxxx Xxxxxxxx Xxxxx Portfolio
EXHIBIT DD
FORM OF ANNUAL COMPLIANCE STATEMENT
CERTIFICATION
-------------
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-LDP11
Commercial Mortgage Pass-Through Certificates
Series 2007-LDP11 (the "Trust")
I, [identifying the certifying individual], on behalf of [Wachovia
Bank, National Association, as a master servicer] [CWCapital Asset Management
LLC, as special servicer][LaSalle Bank National Association, as trustee and
paying agent] (the "Certifying Servicer"), certify to X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp. and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I have reviewed the Certifying Servicer's activities during the
preceding calendar year or portion thereof and the Certifying
Servicer's performance under the Pooling and Servicing Agreement; and
2. To the best of my knowledge, based on my review, the Certifying
Servicer has fulfilled all of its obligations under the Pooling and
Servicing Agreement in all material respects throughout such year or
portion thereof. [To my knowledge, the Certifying Servicer has failed
to fulfill the following obligations under the Pooling and Servicing
Agreement: [SPECIFY EACH SUCH FAILURE AND THE NATURE AND STATUS
THEREOF].
Date:__________________________________
[WACHOVIA BANK, NATIONAL
ASSOCIATION][CWCAPITAL ASSET
MANAGEMENT LLC.][LASALLE BANK NATIONAL
ASSOCIATION]
By: __________________________________
[Name]
[Title]
EXHIBIT EE
SERVICING FUNCTION PARTICIPANTS
With respect to Wachovia Bank, National Association, as the Master Servicer,
none.
With respect to CWCapital Asset Management LLC, Special Servicer, none.
With respect to LaSalle Bank National Association, Trustee, none.
EXHIBIT FF
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: [___________]
From: Wachovia Bank, National Association, in its capacity as Master Servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of July 1, 2007 __(the "Pooling and Servicing Agreement"), among the Master
Servicer, LaSalle Bank National Association, as Trustee, and others.
Dated:______Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Trust 2007-LDP11, Commercial
Mortgage Pass-Through Certificates, Series 2007-LDP11
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement
described above. Capitalized terms used but not defined herein have the
meanings assigned to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance
of the Mortgage Loan that represents and, an allocated loan
amount of $____________ or _______% of the entire principal
balance of the Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for 'AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
'AAA' by [S&P], (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in [Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria"))] as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the [S&P Criteria]) in the name of the Defeasance Obligor, which
account is maintained as a securities account by a securities intermediary
and has been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the [S&P Criteria]), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by the
Master Servicer in accordance with the Servicing Standard stating that (i)
revenues from the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) [The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: __________________________________
Name:
Title:
SCHEDULE 1
----------
Mortgage Loans Containing Additional Debt
------------------------ -------------------------------------------------------
Loan # Property Name
------------------------ -------------------------------------------------------
1 GSA Portfolio
------------------------ -------------------------------------------------------
3 000 Xxxx Xxxxxx Xxxxx
------------------------ -------------------------------------------------------
6 Xxxxxxxx Xxxxx
------------------------ -------------------------------------------------------
10 ChampionsGate Hotel
------------------------ -------------------------------------------------------
11 Lembi Portfolio
------------------------ -------------------------------------------------------
12 Denmark MHC Portfolio
------------------------ -------------------------------------------------------
13 Stadium Towers
------------------------ -------------------------------------------------------
16 Healthnet Headquarters
------------------------ -------------------------------------------------------
23 000 Xxxxxxxx
------------------------ -------------------------------------------------------
25 JQH Hotel Portfolio
------------------------ -------------------------------------------------------
39 Carespring Portfolio
------------------------ -------------------------------------------------------
41 Embassy Suites Hotel & Executive Meeting Center
------------------------ -------------------------------------------------------
00 Xxxxxxxxx Xxxxx
------------------------ -------------------------------------------------------
54 000 00xx Xxxxxx
------------------------ -------------------------------------------------------
72 000 Xxxxx Xxxxxx
------------------------ -------------------------------------------------------
00 Xxxxxxxx Xxxxxxxxx Xxxxxxx
------------------------ -------------------------------------------------------
83 Squire Hill Apartments
------------------------ -------------------------------------------------------
84 Parkway Towers
------------------------ -------------------------------------------------------
88 University Corporate Center One
------------------------ -------------------------------------------------------
104 Xxxxxxxx Multifamily Portfolio
------------------------ -------------------------------------------------------
114 Xxxxx State University
------------------------ -------------------------------------------------------
115 Four Points by Sheraton
------------------------ -------------------------------------------------------
123 Foothill Xxxx Apartments
------------------------ -------------------------------------------------------
168 Ashley Furniture
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx Xxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxx Xxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxx Xxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
------------------------ -------------------------------------------------------
264 Xxxxx Portfolio-Evansville, IN
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
------------------------ -------------------------------------------------------
SCHEDULE 2
Mortgage Loans which Initially Pay Interest Only
------------------------ -------------------------------------------------------
Loan # Property Name
------------------------ -------------------------------------------------------
1 GSA Portfolio
------------------------ -------------------------------------------------------
0 Xxxxx Xxxxx Portfolio
------------------------ -------------------------------------------------------
3 000 Xxxx Xxxxxx Xxxxx
------------------------ -------------------------------------------------------
5 5 Penn Plaza
------------------------ -------------------------------------------------------
6 Xxxxxxxx Xxxxx
------------------------ -------------------------------------------------------
7 Hyatt Regency - Jacksonville
------------------------ -------------------------------------------------------
8 Americold Portfolio
------------------------ -------------------------------------------------------
9 Genesee Valley Center
------------------------ -------------------------------------------------------
10 ChampionsGate Hotel
------------------------ -------------------------------------------------------
11 Lembi Portfolio
------------------------ -------------------------------------------------------
12 Denmark MHC Portfolio
------------------------ -------------------------------------------------------
13 Stadium Towers
------------------------ -------------------------------------------------------
14 0000 Xxxxxxxx
------------------------ -------------------------------------------------------
00 Xxxxxxx Xxxxxx Xxxxxxx
------------------------ -------------------------------------------------------
16 Healthnet Headquarters
------------------------ -------------------------------------------------------
17 The Electra Apartments
------------------------ -------------------------------------------------------
18 399 Boylston
------------------------ -------------------------------------------------------
19 000 Xxxx 00xx Xx
------------------------ -------------------------------------------------------
00 Xxxxxxxxx Xxxxx Xxxxxx
------------------------ -------------------------------------------------------
21 The Landings of Brentwood Apartments
------------------------ -------------------------------------------------------
23 000 Xxxxxxxx
------------------------ -------------------------------------------------------
24 Hamptons MHP
------------------------ -------------------------------------------------------
25 JQH Hotel Portfolio
------------------------ -------------------------------------------------------
00 Xxxxxxxx Xxxxxxx
------------------------ -------------------------------------------------------
27 Brooklyn/Queens Industrial Portfolio
------------------------ -------------------------------------------------------
28 000 Xxxxx Xxxxxx
------------------------ -------------------------------------------------------
29 000 Xxxx Xxxx Xxxxxx
------------------------ -------------------------------------------------------
30 00-00 00xx Xxxxxx
------------------------ -------------------------------------------------------
31 The Mill
------------------------ -------------------------------------------------------
32 Courtly Manor
------------------------ -------------------------------------------------------
33 Burlington Marriott
------------------------ -------------------------------------------------------
35 Sunflower MHP
------------------------ -------------------------------------------------------
34 Kenley Apartments
------------------------ -------------------------------------------------------
36 Swedesford Plaza
------------------------ -------------------------------------------------------
38 Michaels Industrial
------------------------ -------------------------------------------------------
37 Doubletree Bakersfield
------------------------ -------------------------------------------------------
39 Carespring Portfolio
------------------------ -------------------------------------------------------
40 Hilton Garden Inn - Emeryville
------------------------ -------------------------------------------------------
41 Embassy Suites Hotel & Executive Meeting Center
------------------------ -------------------------------------------------------
42 Sheraton Oklahoma City
------------------------ -------------------------------------------------------
43 000 X. Xxxxxxxx
------------------------ -------------------------------------------------------
44 Venice Shoppes
------------------------ -------------------------------------------------------
45 Villas at D'Xxxxxx Apartments
------------------------ -------------------------------------------------------
46 Rocket Lofts
------------------------ -------------------------------------------------------
47 Windmill MHP
------------------------ -------------------------------------------------------
00 Xxxxxxxxx Xxxxx
------------------------ -------------------------------------------------------
49 The Princeton
------------------------ -------------------------------------------------------
51 XXX Kalakaua Center
------------------------ -------------------------------------------------------
52 00-00 Xxxx Xxxxxx
------------------------ -------------------------------------------------------
53 Xxxxxx Xxxxx 4
------------------------ -------------------------------------------------------
54 000 00xx Xxxxxx
------------------------ -------------------------------------------------------
56 The River Inn
------------------------ -------------------------------------------------------
00 Xxxxxxx Xxxxxx - Xxx Xxxxx, XX
------------------------ -------------------------------------------------------
00 Xxxxxxxxxx Xxxxxxx
------------------------ -------------------------------------------------------
59 Lyndhurst Shopping Center
------------------------ -------------------------------------------------------
60 Dick's Sporting Goods - Rockaway
------------------------ -------------------------------------------------------
61 PGA Financial Plaza
------------------------ -------------------------------------------------------
62 Volusia Marketplace
------------------------ -------------------------------------------------------
65 The College Suites at Xxxxxxxx Xxxx Apartments
------------------------ -------------------------------------------------------
63 00 Xxxx 00xx Xxxxxx
------------------------ -------------------------------------------------------
64 Shoppes of Xxxxxxxx Xxxx
------------------------ -------------------------------------------------------
00 Xxxxxxx Xxxxxxx
------------------------ -------------------------------------------------------
00 Xxxxxxx Xxxx
------------------------ -------------------------------------------------------
69 400-1 / 400-2 Xxxxxx Pond
------------------------ -------------------------------------------------------
71 Park Oaks Shopping Center
------------------------ -------------------------------------------------------
70 Center at Split Rock
------------------------ -------------------------------------------------------
72 000 Xxxxx Xxxxxx
------------------------ -------------------------------------------------------
73 Sandcastle Apartments
------------------------ -------------------------------------------------------
00 Xxxxx Xxxx Xxxxx Apartments
------------------------ -------------------------------------------------------
75 Hempstead Retail
------------------------ -------------------------------------------------------
76 The Shops at Xxxxxxxx Park - Phase II
------------------------ -------------------------------------------------------
77 000-00 Xxxxxxxx Xxxxxxxxx
------------------------ -------------------------------------------------------
78 Sweetwater Apartments
------------------------ -------------------------------------------------------
00 Xxxxxxx Xxxxx Xxxxx
------------------------ -------------------------------------------------------
00 Xxxxxxxx Xxxxxxxxx Xxxxxxx
------------------------ -------------------------------------------------------
82 Park at Waterford Harbor
------------------------ -------------------------------------------------------
80 Colonial Bank Plaza
------------------------ -------------------------------------------------------
83 Squire Hill Apartments
------------------------ -------------------------------------------------------
84 Parkway Towers
------------------------ -------------------------------------------------------
85 Hyattsville Portfolio
------------------------ -------------------------------------------------------
00 Xxxxxxx Xxxxxx Warehouse
------------------------ -------------------------------------------------------
87 Exposition Marketplace
------------------------ -------------------------------------------------------
88 University Corporate Center One
------------------------ -------------------------------------------------------
00 Xxxxxx Xxxxx
------------------------ -------------------------------------------------------
91 The Park @ I-95
------------------------ -------------------------------------------------------
93 Highlands Overlook
------------------------ -------------------------------------------------------
94 Worthington on the Beltway
------------------------ -------------------------------------------------------
00 Xxxxxxx Xxxxxx Center
------------------------ -------------------------------------------------------
00 Xxxxxxxx Xxxxx
------------------------ -------------------------------------------------------
00 Xxxxxxxxx Xxxxx Xxxxxxxxx
------------------------ -------------------------------------------------------
99 Palm Key MHP
------------------------ -------------------------------------------------------
103 Glendale Office
------------------------ -------------------------------------------------------
000 Xxxxxxxx Multifamily Portfolio
------------------------ -------------------------------------------------------
106 The Overlook at Las Colinas
------------------------ -------------------------------------------------------
105 Citizen News Building
------------------------ -------------------------------------------------------
108 Rancho Fiesta
------------------------ -------------------------------------------------------
109 Whole Foods Cicero
------------------------ -------------------------------------------------------
110 00-00 00xx Xxxxxx
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxx
------------------------ -------------------------------------------------------
112 Mellon Bank Office Building
------------------------ -------------------------------------------------------
113 0000 Xxxxxxxxxx Xxxxxx and 0000 Xxxxxx Xxxxxx
------------------------ -------------------------------------------------------
000 Xxxx Xxxxxx by Sheraton
------------------------ -------------------------------------------------------
116 000 Xxxx 00xx Xxxxxx
------------------------ -------------------------------------------------------
000 Xxxxxxx Xxxx Shoppes
------------------------ -------------------------------------------------------
119 000 Xx-Xx Xxxx Xxxxxxxxx
------------------------ -------------------------------------------------------
120 000 Xxxxx Xxxx Xxxx
------------------------ -------------------------------------------------------
000 Xxxxxxxxxxxx Xxxxxxxx Xxxxxx
------------------------ -------------------------------------------------------
122 000 Xxxxxxxx
------------------------ -------------------------------------------------------
123 Foothill Xxxx Apartments
------------------------ -------------------------------------------------------
124 Saval Industrial
------------------------ -------------------------------------------------------
000 Xxxxxx Xxxxx Apartments
------------------------ -------------------------------------------------------
000 Xxxxxxxxx Xxxxxxxx Xxxxxx
------------------------ -------------------------------------------------------
127 000 Xxxxx Xxxx Xxxxxxxxx
------------------------ -------------------------------------------------------
128 Corona Apartments
------------------------ -------------------------------------------------------
129 Orpheum Tower Apartments
------------------------ -------------------------------------------------------
133 Century Park Apartments
------------------------ -------------------------------------------------------
135 Shops at Breton Bay
------------------------ -------------------------------------------------------
134 Shadow Oaks
------------------------ -------------------------------------------------------
136 AT&T Chicago
------------------------ -------------------------------------------------------
138 0000-00 Xxxx Xxxxxx
------------------------ -------------------------------------------------------
139 Centerline Shopping Center
------------------------ -------------------------------------------------------
140 Hunter's Crossing
------------------------ -------------------------------------------------------
141 The Preakness
------------------------ -------------------------------------------------------
143 Village of Tampa
------------------------ -------------------------------------------------------
142 Fairmont and Monticello
------------------------ -------------------------------------------------------
145 Santa Xxx
------------------------ -------------------------------------------------------
146 Skee's Industrial
------------------------ -------------------------------------------------------
000 Xxxx Xxxxx - Xx Xxxxxxx
------------------------ -------------------------------------------------------
148 Parkway Villas
------------------------ -------------------------------------------------------
000 Xxx-Xxxx Xxxxx
------------------------ -------------------------------------------------------
150 00 Xxxx 00xx Xxxxxx
------------------------ -------------------------------------------------------
151 Xxxxx Xxxxxxxx Headquarters
------------------------ -------------------------------------------------------
153 6420 Richmond
------------------------ -------------------------------------------------------
154 00-00 Xxxxxxxx Xxxxxxxxx
------------------------ -------------------------------------------------------
155 Spanish Spur
------------------------ -------------------------------------------------------
156 Exeter Industrial Properties
------------------------ -------------------------------------------------------
158 Academy Sports Round Rock
------------------------ -------------------------------------------------------
000 Xxxxxxx Xxxxxxxx
------------------------ -------------------------------------------------------
163 000 Xxxxx Xxxxx Xxxx
------------------------ -------------------------------------------------------
169 The Xxxxxxxxxx
------------------------ -------------------------------------------------------
000 Xxxx Xxxxx Apartments
------------------------ -------------------------------------------------------
174 Evergreen Marketplace
------------------------ -------------------------------------------------------
175 Rite Aid Portfolio
------------------------ -------------------------------------------------------
176 0000 Xxxxxxxxxx Xxxx
------------------------ -------------------------------------------------------
000 Xxxxxx Xxxx Apartments
------------------------ -------------------------------------------------------
179 Grand Twin
------------------------ -------------------------------------------------------
180 Hemet Retail Center
------------------------ -------------------------------------------------------
182 BRECO Building
------------------------ -------------------------------------------------------
000 Xxxxxxxxx Xxxxxx
------------------------ -------------------------------------------------------
000 Xxxxxxxx Xxxx Xxxxxx
------------------------ -------------------------------------------------------
188 000 Xxxx Xxxxxx
------------------------ -------------------------------------------------------
192 Tropical Flamingo Village
------------------------ -------------------------------------------------------
189 366 & 368 Veterans Memorial Highway
------------------------ -------------------------------------------------------
191 Lakeside Retail
------------------------ -------------------------------------------------------
190 0000 Xxxxxxxx Xxxxxxxxx
------------------------ -------------------------------------------------------
197 0000 Xxxxxx Xxxx Xxxx
------------------------ -------------------------------------------------------
198 Walgreens - Duluth
------------------------ -------------------------------------------------------
199 Harbin Springs Apartments
------------------------ -------------------------------------------------------
000 Xxxxxxx Xxxxxx
------------------------ -------------------------------------------------------
202 Metro Self Storage - Fort Xxxxx
------------------------ -------------------------------------------------------
203 Best Buy-Witchita Falls
------------------------ -------------------------------------------------------
204 0-00 Xxxxxxx Xxxxxx
------------------------ -------------------------------------------------------
206 Ashley Self Storage
------------------------ -------------------------------------------------------
207 Walgreens - Littleton
------------------------ -------------------------------------------------------
000 Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx
------------------------ -------------------------------------------------------
209 Florida City - Extra Space Storage
------------------------ -------------------------------------------------------
210 Walgreens - Utica
------------------------ -------------------------------------------------------
211 Pecan Manor
------------------------ -------------------------------------------------------
214 Sun West Promenade Building I
------------------------ -------------------------------------------------------
217 Walgreens - Xxxxxxxx
------------------------ -------------------------------------------------------
215 0000-0000 Xxxxxxxxxx Xxxxxxxxx
------------------------ -------------------------------------------------------
216 Las Colinas Office
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxx
------------------------ -------------------------------------------------------
000 Xxxxxxx Xxxxxxxx Center
------------------------ -------------------------------------------------------
000 Xxxxxx Xxxxx Apartments
------------------------ -------------------------------------------------------
221 Xxxxxxx Industrial Portfolio
------------------------ -------------------------------------------------------
222 Metro Self Storage - Douglasville
------------------------ -------------------------------------------------------
000 Xxxxxx Xxxxx
------------------------ -------------------------------------------------------
227 000 Xxxxx Xxxxxx
------------------------ -------------------------------------------------------
228 Rite Aid - Xxxxxxxx
------------------------ -------------------------------------------------------
232 Walgreens - Lancaster
------------------------ -------------------------------------------------------
233 Walgreens - Mocksville
------------------------ -------------------------------------------------------
000 Xxxx Xxxx Xxxx Center
------------------------ -------------------------------------------------------
000 Xxxxx'x Xxxxxxxx Xxxxx Xxxxxx
------------------------ -------------------------------------------------------
237 Six Forks - Raleigh
------------------------ -------------------------------------------------------
238 Rite Aid - Xxxxxxx
------------------------ -------------------------------------------------------
240 0000 Xxxx Xxxxxx Xxxxxx
------------------------ -------------------------------------------------------
239 000 Xxxxxxxxxxxxx Xxxxxx
------------------------ -------------------------------------------------------
242 1550 North Congress
------------------------ -------------------------------------------------------
243 Rite Aid - Emporium
------------------------ -------------------------------------------------------
244 0000-00 Xxxx Xxxxxx
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxx Xxxxx Portfolio
------------------------ -------------------------------------------------------
247 Rails End
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxxxx Xxxxx - Raleigh
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx Xxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxx Xxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxx Xxxxxxxxxx, XX
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
------------------------ -------------------------------------------------------
264 Xxxxx Portfolio-Evansville, IN
------------------------ -------------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX
------------------------ -------------------------------------------------------
266 Arby's - Grand Rapids
------------------------ -------------------------------------------------------
SCHEDULE 3
----------
Assumption Fees on Certain Mortgage Loans
------------- ---------------------------------- ------------------------------------------------
Loan Number Property Name Assumption Fee
------------- ---------------------------------- ------------------------------------------------
1 GSA Portfolio 0.10%
------------- ---------------------------------- ------------------------------------------------
0 Xxxxx Xxxxx Portfolio 0.50%
------------- ---------------------------------- ------------------------------------------------
3 000 Xxxx Xxxxxx Xxxxx 0.25%
------------- ---------------------------------- ------------------------------------------------
4 Save Mart Portfolio 1.00%
------------- ---------------------------------- ------------------------------------------------
5 5 Penn Plaza 0.000%
------------- ---------------------------------- ------------------------------------------------
6 Xxxxxxxx Xxxxx $75,000
------------- ---------------------------------- ------------------------------------------------
7 Hyatt Regency - Jacksonville 0.25%
------------- ---------------------------------- ------------------------------------------------
8 Americold Portfolio $25,000
------------- ---------------------------------- ------------------------------------------------
9 Genesee Valley Center 0.5% for the first transfer only, none in the
event of a controlling interest transfer
------------- ---------------------------------- ------------------------------------------------
10 ChampionsGate Hotel 1.00%
------------- ---------------------------------- ------------------------------------------------
11 Lembi Portfolio 0.50%
------------- ---------------------------------- ------------------------------------------------
12 Denmark MHC Portfolio 1.00%
------------- ---------------------------------- ------------------------------------------------
13 Stadium Towers 0.50%
------------- ---------------------------------- ------------------------------------------------
14 0000 Xxxxxxxx 0.10%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxx Xxxxxx Xxxxxxx 0.50%
------------- ---------------------------------- ------------------------------------------------
16 Healthnet Headquarters 1.00%
------------- ---------------------------------- ------------------------------------------------
17 The Electra Apartments 0.50%
------------- ---------------------------------- ------------------------------------------------
18 399 Boylston $150,000
------------- ---------------------------------- ------------------------------------------------
19 000 Xxxx 00xx Xx 0.50%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxxxx Xxxxx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
21 The Landings of Brentwood 1.00%
Apartments
------------- ---------------------------------- ------------------------------------------------
22 Holiday Inn Hotel & Suites Ocean 1.00%
City
------------- ---------------------------------- ------------------------------------------------
23 000 Xxxxxxxx 0.000%
------------- ---------------------------------- ------------------------------------------------
24 Hamptons MHP 1.00%
------------- ---------------------------------- ------------------------------------------------
25 JQH Hotel Portfolio 0.25%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxxx Xxxxxxx 0.000%
------------- ---------------------------------- ------------------------------------------------
27 Brooklyn/Queens Industrial 1.000%
Portfolio
------------- ---------------------------------- ------------------------------------------------
28 000 Xxxxx Xxxxxx 0.50%
------------- ---------------------------------- ------------------------------------------------
29 000 Xxxx Xxxx Xxxxxx 0.50%
------------- ---------------------------------- ------------------------------------------------
30 00-00 00xx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
31 The Mill 0.000%
------------- ---------------------------------- ------------------------------------------------
32 Courtly Manor 1.00%
------------- ---------------------------------- ------------------------------------------------
33 Burlington Marriott $100,000
------------- ---------------------------------- ------------------------------------------------
34 Kenley Apartments 1.000%
------------- ---------------------------------- ------------------------------------------------
35 Sunflower MHP 0.0% for the first transfer only, 0.5% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
36 Swedesford Plaza 1.000%
------------- ---------------------------------- ------------------------------------------------
37 Doubletree Bakersfield 1.00%
------------- ---------------------------------- ------------------------------------------------
38 Michaels Industrial 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
39 Carespring Portfolio 0.500%
------------- ---------------------------------- ------------------------------------------------
40 Hilton Garden Inn - Emeryville 0.25%
------------- ---------------------------------- ------------------------------------------------
41 Embassy Suites Hotel & Executive 0.000%
Meeting Center
------------- ---------------------------------- ------------------------------------------------
42 Sheraton Oklahoma City 0.50%
------------- ---------------------------------- ------------------------------------------------
43 000 X. Xxxxxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
44 Venice Shoppes 0.50%
------------- ---------------------------------- ------------------------------------------------
45 Villas at D'Xxxxxx Apartments 1.00%
------------- ---------------------------------- ------------------------------------------------
46 Rocket Lofts 1.00%
------------- ---------------------------------- ------------------------------------------------
47 Windmill MHP 1.00%
------------- ---------------------------------- ------------------------------------------------
48 Smoketown Plaza 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
49 The Princeton 3 at 0.5%
------------- ---------------------------------- ------------------------------------------------
00 Xxx XxXxxxxx Xxxxx Center 1.000%
------------- ---------------------------------- ------------------------------------------------
51 XXX Kalakaua Center 0.25%
------------- ---------------------------------- ------------------------------------------------
52 00-00 Xxxx Xxxxxx 0.50%
------------- ---------------------------------- ------------------------------------------------
53 Xxxxxx Xxxxx 4 1 time @ $10,000
------------- ---------------------------------- ------------------------------------------------
54 000 00xx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
55 Cinemark Valley View 0.500%
------------- ---------------------------------- ------------------------------------------------
56 The River Inn 0.500%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxx Xxxxxx - Xxx Xxxxx, XX 0.50%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxxxxx Xxxxxxx 0.500%
------------- ---------------------------------- ------------------------------------------------
59 Lyndhurst Shopping Center 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
60 Dick's Sporting Goods - Rockaway 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
61 PGA Financial Plaza 0.20%
------------- ---------------------------------- ------------------------------------------------
62 Volusia Marketplace 1.000%
------------- ---------------------------------- ------------------------------------------------
63 00 Xxxx 00xx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
64 Shoppes of Xxxxxxxx Xxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
65 The College Suites at Xxxxxxxx 1.00%
Lane Apartments
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxx Xxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
67 Xxxxxxx Hotel 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxx Xxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
69 400-1 / 400-2 Xxxxxx Pond 1.00%
------------- ---------------------------------- ------------------------------------------------
70 Center at Split Rock 0.50%
------------- ---------------------------------- ------------------------------------------------
71 Park Oaks Shopping Center 3 at 1.0%
------------- ---------------------------------- ------------------------------------------------
72 000 Xxxxx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
73 Sandcastle Apartments 1.000%
------------- ---------------------------------- ------------------------------------------------
74 Bronx Park South Apartments 1.00%
------------- ---------------------------------- ------------------------------------------------
75 Hempstead Retail 0.00%
------------- ---------------------------------- ------------------------------------------------
76 The Shops at Xxxxxxxx Park - 1.000%
Phase II
------------- ---------------------------------- ------------------------------------------------
77 000-00 Xxxxxxxx Xxxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
78 Sweetwater Apartments 1.00%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxx Xxxxx Xxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
80 Colonial Bank Plaza 1.000%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxxx Xxxxxxxxx Xxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
82 Park at Waterford Harbor 1.00%
------------- ---------------------------------- ------------------------------------------------
83 Squire Hill Apartments 1.00%
------------- ---------------------------------- ------------------------------------------------
84 Parkway Towers 1.00%
------------- ---------------------------------- ------------------------------------------------
85 Hyattsville Portfolio 1.00%
------------- ---------------------------------- ------------------------------------------------
86 Xxxxx Medical Office 1.000%
------------- ---------------------------------- ------------------------------------------------
87 Exposition Marketplace 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
88 University Corporate Center One 0.50%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxx Xxxxxx Warehouse 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxx Xxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
91 The Park @ I-95 0.500%
------------- ---------------------------------- ------------------------------------------------
93 Highlands Overlook 0.50%
------------- ---------------------------------- ------------------------------------------------
94 Worthington on the Beltway 1.000%
------------- ---------------------------------- ------------------------------------------------
95 BB Mini Storage Portfolio 1.000%
------------- ---------------------------------- ------------------------------------------------
96 Preston Valley Center 1.00%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxxx Xxxxx 0.000%
------------- ---------------------------------- ------------------------------------------------
00 Xxxxxxxxx Xxxxx Xxxxxxxxx 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
99 Palm Key MHP 1.00%
------------- ---------------------------------- ------------------------------------------------
100 Hampton Inn Xxxx Valley 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
101 Industry Hills Center 1.0%
------------- ---------------------------------- ------------------------------------------------
102 Kumho Tires 0.50%
------------- ---------------------------------- ------------------------------------------------
103 Glendale Office 1.0%
------------- ---------------------------------- ------------------------------------------------
104 Xxxxxxxx Multifamily Portfolio 1.00%
------------- ---------------------------------- ------------------------------------------------
105 Citizen News Building 1.00%
------------- ---------------------------------- ------------------------------------------------
106 The Overlook at Las Colinas 1.00%
------------- ---------------------------------- ------------------------------------------------
107 0000 Xxxxxxx Xxxxx 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
108 Rancho Fiesta 1.000%
------------- ---------------------------------- ------------------------------------------------
109 Whole Foods Cicero 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
110 00-00 00xx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxx 0.75%, 1% for all Special Transfers
thereafter, none in the event of a Controlling
Interest Transfer
------------- ---------------------------------- ------------------------------------------------
112 Mellon Bank Office Building 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
113 0000 Xxxxxxxxxx Xxxxxx and 1345 1%, none in the event of a controlling
Drexel Avenue interest transfer
------------- ---------------------------------- ------------------------------------------------
114 Xxxxx State University 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxx Xxxxxx by Sheraton 0.000%
------------- ---------------------------------- ------------------------------------------------
116 000 Xxxx 00xx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxx Xxxx Shoppes 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxxx Xxxxxxxxxx 0%, xxxx in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
119 000 Xx-Xx Xxxx Xxxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
120 000 Xxxxx Xxxx Xxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
121 Commonwealth Business Center 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
122 000 Xxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
123 Foothill Xxxx Apartments 0.25%
------------- ---------------------------------- ------------------------------------------------
124 Saval Industrial 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxx Xxxxx Apartments 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxxxx Xxxxxxxx Xxxxxx 0%, xxxx in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
127 000 Xxxxx Xxxx Xxxxxxxxx 0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
128 Corona Apartments 1.00%
------------- ---------------------------------- ------------------------------------------------
129 Orpheum Tower Apartments 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxx Xxxxxx Xxxxxxxxxxxxx - 0.000%
Xxxxxx, XX
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxxx Xxxxxxx I 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxx Xxxxx Xxxxxxxxxx 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
133 Century Park Apartments 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
134 Shadow Oaks 1.000%
------------- ---------------------------------- ------------------------------------------------
135 Shops at Breton Bay 1.00%
------------- ---------------------------------- ------------------------------------------------
136 AT&T Chicago 1.00%
------------- ---------------------------------- ------------------------------------------------
137 Comfort Suites Downtown 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
138 0000-00 Xxxx Xxxxxx 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
139 Centerline Shopping Center .5% for all Special Transfers, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
140 Hunter's Crossing 0.500%
------------- ---------------------------------- ------------------------------------------------
141 The Preakness 1.000%
------------- ---------------------------------- ------------------------------------------------
142 Fairmont and Monticello 1.000%
------------- ---------------------------------- ------------------------------------------------
143 Village of Tampa 0.5% for the first transfer only, none in the
event of a controlling interest transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxx Xxx Xxxxxxxx 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
145 Santa Xxx 1.00%
------------- ---------------------------------- ------------------------------------------------
146 Skee's Industrial 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxx Xxxxx - Xx Xxxxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
148 Parkway Villas 0.500%
------------- ---------------------------------- ------------------------------------------------
000 Xxx-Xxxx Xxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
150 00 Xxxx 00xx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
151 Xxxxx Xxxxxxxx Headquarters 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
152 Spring Hills Business Center 1.00%
------------- ---------------------------------- ------------------------------------------------
153 6420 Richmond 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
154 00-00 Xxxxxxxx Xxxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
155 Spanish Spur 0.000%
------------- ---------------------------------- ------------------------------------------------
156 Exeter Industrial Properties 1.000%
------------- ---------------------------------- ------------------------------------------------
157 Orem Center 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
158 Academy Sports Round Rock 1.000%
------------- ---------------------------------- ------------------------------------------------
159 Loews Mountainside 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
160 Tramz Hampton Inn - Greenville 1.000%
------------- ---------------------------------- ------------------------------------------------
161 0000 Xxxxxxx Xxxxxxxxx 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxx Xxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
163 000 Xxxxx Xxxxx Xxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx xx Xxxxxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
165 Eagleview Apartments 1.0%
------------- ---------------------------------- ------------------------------------------------
166 0000 Xxxxxxx Xxxxx 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
167 Tramz Hampton Inn - Amarillo 1.000%
------------- ---------------------------------- ------------------------------------------------
168 Ashley Furniture 0.500%
------------- ---------------------------------- ------------------------------------------------
169 The Xxxxxxxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
170 Country Inn & Suites - 1.0%, none in the event of a controlling
Champaign, IL interest transfer
------------- ---------------------------------- ------------------------------------------------
171 Country Inn & Suites - 1.0%, none in the event of a controlling
Bloomington, IL interest transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxx Xxxxx Xxxxxxxxxx 0 @ 0.75%
------------- ---------------------------------- ------------------------------------------------
173 000 Xxxxx Xxxxxxxxx & 819 North 0.5% for the first transfer only, 1% for all
La Cienega Boulevard Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxxxx Xxxxxxxxxxx 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
175 Rite Aid Portfolio 1.00%
------------- ---------------------------------- ------------------------------------------------
176 0000 Xxxxxxxxxx Xxxx 0.25%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxx Xxx - Xxx Xxxxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxx Xxxx Apartments 1.000%
------------- ---------------------------------- ------------------------------------------------
179 Grand Twin 1.000%
------------- ---------------------------------- ------------------------------------------------
180 Hemet Retail Center 1.00%
------------- ---------------------------------- ------------------------------------------------
181 Tramz Hampton Inn - Albuquerque 1.000%
------------- ---------------------------------- ------------------------------------------------
182 BRECO Building 1.000%
------------- ---------------------------------- ------------------------------------------------
183 Crossgate Center 1.000%
------------- ---------------------------------- ------------------------------------------------
184 Tramz Hampton Inn - Eden Prairie 1.000%
------------- ---------------------------------- ------------------------------------------------
185 Lakewood City Center 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
186 Falls Parc Apartments 1.000%
------------- ---------------------------------- ------------------------------------------------
187 Tramz Hampton Inn - Greensboro 1.000%
------------- ---------------------------------- ------------------------------------------------
188 000 Xxxx Xxxxxx 0.5% for the 1st, 1.0% for the 2nd and 3rd
------------- ---------------------------------- ------------------------------------------------
189 366 & 368 Veterans Memorial 1.00%
Highway
------------- ---------------------------------- ------------------------------------------------
190 0000 Xxxxxxxx Xxxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
191 Lakeside Retail 1.000%
------------- ---------------------------------- ------------------------------------------------
192 Tropical Flamingo Village 1%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
193 The Executive Building - Cin. Oh 1.000%
------------- ---------------------------------- ------------------------------------------------
194 Shell - Firestone 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
195 Western Knitting Xxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
196 Tramz Hampton Inn - Syracuse 1.000%
------------- ---------------------------------- ------------------------------------------------
197 0000 Xxxxxx Xxxx Xxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
198 Walgreens - Duluth 0.50%
------------- ---------------------------------- ------------------------------------------------
199 Harbin Springs Apartments 1.000%
------------- ---------------------------------- ------------------------------------------------
200 Holiday Inn Express - 1.00%
Sharonville, OH
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxx Xxxxxx 0.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxx Xxxxxxx - Xxxx Xxxxx 0.25%
------------- ---------------------------------- ------------------------------------------------
203 Best Buy-Witchita Falls 0.500%
------------- ---------------------------------- ------------------------------------------------
204 0-00 Xxxxxxx Xxxxxx 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
205 Holiday Inn Express - Xxxxxxxxx 1.00%
City, NC
------------- ---------------------------------- ------------------------------------------------
206 Ashley Self Storage 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxxxx - Xxxxxxxxx 0.50%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
209 Florida City - Extra Space 0.500%
Storage
------------- ---------------------------------- ------------------------------------------------
210 Walgreens - Utica 1.00%
------------- ---------------------------------- ------------------------------------------------
211 Pecan Manor 0.000%
------------- ---------------------------------- ------------------------------------------------
212 Academy Sports San Antonio 1.000%
------------- ---------------------------------- ------------------------------------------------
213 Chestnut Parking Garage 1.00%
------------- ---------------------------------- ------------------------------------------------
214 Sun West Promenade Building I 1.000%
------------- ---------------------------------- ------------------------------------------------
215 0000-0000 Xxxxxxxxxx Xxxxxxxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
216 Las Colinas Office 1.000%
------------- ---------------------------------- ------------------------------------------------
217 Walgreens - Xxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxx 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxx Xxxxxxxx Center 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxx Xxxxx Apartments 0.25%
------------- ---------------------------------- ------------------------------------------------
221 Xxxxxxx Industrial Portfolio 0.5% for the 1st, 1.0% for the 2nd and 3rd
------------- ---------------------------------- ------------------------------------------------
222 Metro Self Storage - Douglasville 0.25%
------------- ---------------------------------- ------------------------------------------------
223 Walgreens Memphis 1.00%
------------- ---------------------------------- ------------------------------------------------
224 000 Xxxx Xxxx 1.000%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxx Xxxxx 0.000%
------------- ---------------------------------- ------------------------------------------------
226 Comfort Inn - Red Bluff 1.000%
------------- ---------------------------------- ------------------------------------------------
227 000 Xxxxx Xxxxxx 0.50%
------------- ---------------------------------- ------------------------------------------------
228 Rite Aid - Xxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
229 000 Xxxxxxxxxxx Xxxx 1.0%
------------- ---------------------------------- ------------------------------------------------
230 0000 Xxxx 00xx Xxxxxx 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
231 Academy Sports Houston 1.000%
------------- ---------------------------------- ------------------------------------------------
232 Walgreens - Lancaster 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxxxx - Xxxxxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxx Xxxx Xxxx Center 1.0%
------------- ---------------------------------- ------------------------------------------------
235 Raven's Crossing Strip Center 1.00%
------------- ---------------------------------- ------------------------------------------------
236 Xxxx Oaks Apartments 1.00%
------------- ---------------------------------- ------------------------------------------------
237 Six Forks - Raleigh 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
238 Rite Aid - Xxxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
239 000 Xxxxxxxxxxxxx Xxxxxx 1.00%
------------- ---------------------------------- ------------------------------------------------
240 0000 Xxxx Xxxxxx Xxxxxx 1% for all Special Transfers, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
241 Xxxxxxxxx Twins Apartments 1.0%
------------- ---------------------------------- ------------------------------------------------
242 1550 North Congress 1.000%
------------- ---------------------------------- ------------------------------------------------
243 Rite Aid - Emporium 1.00%
------------- ---------------------------------- ------------------------------------------------
244 0000-00 Xxxx Xxxxxx 1% for all Special Transfers, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxx Xxxxx Portfolio 1.00%
------------- ---------------------------------- ------------------------------------------------
246 CVS Holliston 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
247 Rails End 1.00%
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxxxx Xxxxx - Raleigh 1.0%, none in the event of a controlling
interest transfer
------------- ---------------------------------- ------------------------------------------------
250 Creedmoor Centre 10 1% for all Special Transfers
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
254 7772 Santa Xxxxxx Boulevard 0.5% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxx Xxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
256 Creedmoor Centre 1 1% for all Special Transfers
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxx Xxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
262 Xxxxx Portfolio-Fort Oglethorpe, 0.0% for the first transfer only, 1% for all
GA Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
264 Xxxxx Portfolio-Evansville, IN 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
000 Xxxxx Xxxxxxxxx-Xxxxxx, XX 0.0% for the first transfer only, 1% for all
Special Transfers thereafter, none in the
event of a Controlling Interest Transfer
------------- ---------------------------------- ------------------------------------------------
266 Arby's - Grand Rapids 1.00%
------------- ---------------------------------- ------------------------------------------------
SCHEDULE 4
----------
Class A-SB Planned Principal Balance Schedule
---------------------------------------- -----------------------------------
Date Balance
---------------------------------------- -----------------------------------
August 15, 2007 $123,791,000.00
---------------------------------------- -----------------------------------
September 15, 2007 $123,791,000.00
---------------------------------------- -----------------------------------
October 15, 2007 $123,791,000.00
---------------------------------------- -----------------------------------
November 15, 2007 $123,791,000.00
---------------------------------------- -----------------------------------
December 15, 2007 $123,791,000.00
---------------------------------------- -----------------------------------
January 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
February 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
March 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
April 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
May 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
June 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
July 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
August 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
September 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
October 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
November 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
December 15, 2008 $123,791,000.00
---------------------------------------- -----------------------------------
January 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
February 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
March 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
April 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
May 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
June 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
July 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
August 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
September 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
October 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
November 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
December 15, 2009 $123,791,000.00
---------------------------------------- -----------------------------------
January 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
February 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
March 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
April 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
May 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
June 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
July 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
August 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
September 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
October 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
November 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
December 15, 2010 $123,791,000.00
---------------------------------------- -----------------------------------
January 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
February 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
March 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
April 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
May 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
June 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
July 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
August 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
September 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
October 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
November 15, 2011 $123,791,000.00
---------------------------------------- -----------------------------------
December 15, 2011 $123,791,000.01
---------------------------------------- -----------------------------------
January 15, 2012 $123,791,000.00
---------------------------------------- -----------------------------------
February 15, 2012 $122,288,937.20
---------------------------------------- -----------------------------------
March 15, 2012 $120,417,956.21
---------------------------------------- -----------------------------------
April 15, 2012 $118,896,429.77
---------------------------------------- -----------------------------------
May 15, 2012 $117,063,778.04
---------------------------------------- -----------------------------------
June 15, 2012 $115,360,028.00
---------------------------------------- -----------------------------------
July 15, 2012 $113,358,348.48
---------------------------------------- -----------------------------------
August 15, 2012 $111,513,828.92
---------------------------------------- -----------------------------------
September 15, 2012 $109,659,845.87
---------------------------------------- -----------------------------------
October 15, 2012 $107,576,855.23
---------------------------------------- -----------------------------------
November 15, 2012 $105,702,665.01
---------------------------------------- -----------------------------------
December 15, 2012 $103,599,982.30
---------------------------------------- -----------------------------------
January 15, 2013 $101,705,379.25
---------------------------------------- -----------------------------------
February 15, 2013 $99,801,054.57
---------------------------------------- -----------------------------------
March 15, 2013 $97,233,097.16
---------------------------------------- -----------------------------------
April 15, 2013 $95,305,801.52
---------------------------------------- -----------------------------------
May 15, 2013 $93,151,369.88
---------------------------------------- -----------------------------------
June 15, 2013 $91,199,294.20
---------------------------------------- -----------------------------------
July 15, 2013 $89,014,378.09
---------------------------------------- -----------------------------------
August 15, 2013 $87,036,352.84
---------------------------------------- -----------------------------------
September 15, 2013 $85,048,178.03
---------------------------------------- -----------------------------------
October 15, 2013 $82,832,654.23
---------------------------------------- -----------------------------------
November 15, 2013 $80,822,901.94
---------------------------------------- -----------------------------------
December 15, 2013 $78,586,350.69
---------------------------------------- -----------------------------------
January 15, 2014 $76,554,801.28
---------------------------------------- -----------------------------------
February 15, 2014 $74,512,826.44
---------------------------------------- -----------------------------------
March 15, 2014 $71,813,874.18
---------------------------------------- -----------------------------------
April 15, 2014 $69,747,548.77
---------------------------------------- -----------------------------------
May 15, 2014 $67,455,869.31
---------------------------------------- -----------------------------------
June 15, 2014 $65,367,170.83
---------------------------------------- -----------------------------------
July 15, 2014 $63,057,157.11
---------------------------------------- -----------------------------------
August 15, 2014 $61,105,371.78
---------------------------------------- -----------------------------------
September 15, 2014 $59,143,658.89
---------------------------------------- -----------------------------------
October 15, 2014 $56,974,341.05
---------------------------------------- -----------------------------------
November 15, 2014 $54,991,607.32
---------------------------------------- -----------------------------------
December 15, 2014 $52,801,801.93
---------------------------------------- -----------------------------------
January 15, 2015 $50,797,835.42
---------------------------------------- -----------------------------------
February 15, 2015 $48,783,674.96
---------------------------------------- -----------------------------------
March 15, 2015 $46,171,180.26
---------------------------------------- -----------------------------------
April 15, 2015 $44,133,459.47
---------------------------------------- -----------------------------------
May 15, 2015 $41,890,064.74
---------------------------------------- -----------------------------------
June 15, 2015 $39,830,556.64
---------------------------------------- -----------------------------------
July 15, 2015 $37,565,927.24
---------------------------------------- -----------------------------------
August 15, 2015 $35,484,412.14
---------------------------------------- -----------------------------------
September 15, 2015 $33,392,307.06
---------------------------------------- -----------------------------------
October 15, 2015 $31,095,906.49
---------------------------------------- -----------------------------------
November 15, 2015 $28,981,465.74
---------------------------------------- -----------------------------------
December 15, 2015 $26,663,295.94
---------------------------------------- -----------------------------------
January 15, 2016 $24,526,294.27
---------------------------------------- -----------------------------------
February 15, 2016 $22,378,419.30
---------------------------------------- -----------------------------------
March 15, 2016 $19,995,064.54
---------------------------------------- -----------------------------------
April 15, 2016 $17,949,981.30
---------------------------------------- -----------------------------------
May 15, 2016 $15,720,104.71
---------------------------------------- -----------------------------------
June 15, 2016 $13,653,449.68
---------------------------------------- -----------------------------------
July 15, 2016 $11,401,852.61
---------------------------------------- -----------------------------------
August 15, 2016 $9,322,923.81
---------------------------------------- -----------------------------------
September 15, 2016 $7,233,510.00
---------------------------------------- -----------------------------------
October 15, 2016 $0.00
---------------------------------------- -----------------------------------
