Exhibit 4.1
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
XXXXX FARGO BANK, N.A.,
as General Master Servicer,
LNR PARTNERS, INC.,
as General Special Servicer,
NCB, FSB,
as NCB Master Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, Paying Agent and Certificate Registrar
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2007
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ13
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions....................................................
Section 1.2 Calculations Respecting Mortgage Loans.........................
Section 1.3 Calculations Respecting Accrued Interest.......................
Section 1.4 Interpretation.................................................
Section 1.5 ARD Loans......................................................
Section 1.6 Certain Matters Relating to the Non-Trust-Serviced Pari Passu
Loan..........................................................
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans...................................
Section 2.2 Acceptance by Trustee..........................................
Section 2.3 Repurchase of Mortgage Loans for Material Document Defects and
Material Breaches of Representations and Warranties...........
Section 2.4 Representations and Warranties.................................
Section 2.5 Conveyance of Interests........................................
Section 2.6 Certain Matters Relating to Non-Trust-Serviced Pari Passu Loan.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates...............................................
Section 3.2 Registration...................................................
Section 3.3 Transfer and Exchange of Certificates..........................
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates..............
Section 3.5 Persons Deemed Owners..........................................
Section 3.6 Access to List of Certificateholders' Names and Addresses......
Section 3.7 Book-Entry Certificates........................................
Section 3.8 Notices to Clearing Agency.....................................
Section 3.9 Definitive Certificates........................................
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by the Master Servicers...........................
Section 4.1A P&I Advances with Respect to the Non-Trust Serviced Pari Passu
Loan..........................................................
Section 4.2 Servicing Advances.............................................
Section 4.3 Advances by the Trustee........................................
Section 4.4 Evidence of Nonrecoverability..................................
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with
Respect to a Mortgage Loan....................................
Section 4.6 Reimbursement of Advances and Advance Interest.................
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections....................................................
Section 5.2 Application of Funds in the Certificate Accounts and Interest
Reserve Accounts..............................................
Section 5.3 Distribution Account, Excess Interest Sub-account and Reserve
Account.......................................................
Section 5.4 Trustee Reports................................................
Section 5.5 Trustee Tax Reports............................................
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally........................................
Section 6.2 REMIC I........................................................
Section 6.3 REMIC II.......................................................
Section 6.4 [Reserved].....................................................
Section 6.5 REMIC III......................................................
Section 6.6 Allocation of Realized Losses, Expense Losses and Shortfalls
Due to Nonrecoverability......................................
Section 6.7 Net Aggregate Prepayment Interest Shortfalls...................
Section 6.8 Adjustment of Servicing Fees...................................
Section 6.9 Appraisal Reductions...........................................
Section 6.10 Compliance with Withholding Requirements.......................
Section 6.11 Prepayment Premiums and Yield Maintenance Charges..............
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE, THE CERTIFICATE REGISTRAR,
AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent.....................
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent.....
Section 7.3 The Trustee and the Paying Agent Not Liable for Certificates
or Interests or Mortgage Loans................................
Section 7.4 The Trustee and the Paying Agent May Own Certificates..........
Section 7.5 Eligibility Requirements for the Trustee and the Paying Agent..
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent.....
Section 7.7 Successor Trustee or Paying Agent..............................
Section 7.8 Merger or Consolidation of Trustee or Paying Agent.............
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian.....................................................
Section 7.10 Authenticating Agents..........................................
Section 7.11 Indemnification of the Trustee and the Paying Agent............
Section 7.12 Fees and Expenses of Trustee and the Paying Agent..............
Section 7.13 Collection of Moneys...........................................
Section 7.14 Trustee to Act; Appointment of Successor.......................
Section 7.15 Notification to Holders........................................
Section 7.16 Representations and Warranties of the Trustee, the Certificate
Registrar and the Paying Agent................................
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent................
Section 7.18 Appointment of a Fiscal Agent..................................
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties...........................
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers............................
Section 8.3 Master Servicers' General Power and Duties.....................
Section 8.4 Primary Servicing and Sub-Servicing............................
Section 8.5 Servicers May Own Certificates.................................
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes.....
Section 8.7 [Reserved].....................................................
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files........
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of the
Certificateholders............................................
Section 8.10 Servicing Compensation.........................................
Section 8.11 Master Servicer Reports; Account Statements....................
Section 8.12 [Reserved].....................................................
Section 8.13 [Reserved].....................................................
Section 8.14 Operating Statement Analysis Reports Regarding the Mortgaged
Properties....................................................
Section 8.15 Other Available Information and Certain Rights of the Master
Servicer......................................................
Section 8.16 Rule 144A Information..........................................
Section 8.17 Inspections....................................................
Section 8.18 [Reserved].....................................................
Section 8.19 Specially Serviced Mortgage Loans..............................
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers.....................................................
Section 8.21 Merger or Consolidation........................................
Section 8.22 Resignation of the Master Servicer.............................
Section 8.23 Assignment or Delegation of Duties by the Master Servicer......
Section 8.24 Limitation on Liability of the Master Servicers and Others.....
Section 8.25 Indemnification; Third-Party Claims............................
Section 8.26 [Reserved].....................................................
Section 8.27 Compliance with REMIC Provisions and Grantor Trust Provisions..
Section 8.28 Termination....................................................
Section 8.29 Procedure Upon Termination.....................................
Section 8.30 Notification to Certificateholders.............................
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY THE SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers................................
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of the
Special Servicers.............................................
Section 9.3 Sub-Servicers..................................................
Section 9.4 Special Servicers' General Powers and Duties...................
Section 9.5 [Reserved].....................................................
Section 9.6 Release of Mortgage Files......................................
Section 9.7 Documents, Records and Funds in Possession of the Special
Servicers to Be Held for the Trustee..........................
Section 9.8 Representations, Warranties and Covenants of the Special
Servicers.....................................................
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability
Insurance Policies............................................
Section 9.10 Presentment of Claims and Collection of Proceeds...............
Section 9.11 Compensation to the Special Servicer...........................
Section 9.12 Realization Upon Defaulted Mortgage Loans......................
Section 9.13 Foreclosure....................................................
Section 9.14 Operation of REO Property......................................
Section 9.15 Sale of REO Property...........................................
Section 9.16 Realization on Collateral Security.............................
Section 9.17 [Reserved].....................................................
Section 9.18 [Reserved].....................................................
Section 9.19 [Reserved].....................................................
Section 9.20 Merger or Consolidation........................................
Section 9.21 Resignation of the Special Servicer............................
Section 9.22 Assignment or Delegation of Duties by the Special Servicers....
Section 9.23 Limitation on Liability of the Special Servicers and Others....
Section 9.24 Indemnification; Third-Party Claims............................
Section 9.25 [Reserved].....................................................
Section 9.26 Special Servicers May Own Certificates.........................
Section 9.27 Tax Reporting..................................................
Section 9.28 Application of Funds Received..................................
Section 9.29 Compliance with REMIC Provisions and Grantor Trust Provisions..
Section 9.30 Termination....................................................
Section 9.31 Procedure Upon Termination.....................................
Section 9.32 Certain Special Servicer Reports...............................
Section 9.33 Special Servicers to Cooperate with the Master Servicers and
Trustee.......................................................
Section 9.34 [Reserved].....................................................
Section 9.35 [Reserved].....................................................
Section 9.36 Sale of Defaulted Mortgage Loans...............................
Section 9.37 Operating Adviser; Elections...................................
Section 9.38 Limitation on Liability of Operating Adviser...................
Section 9.39 Rights of Operating Adviser....................................
Section 9.40 Litigation Control.............................................
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All
Mortgage Loans................................................
Section 10.2 Procedure Upon Termination of Trust............................
Section 10.3 Additional REMIC Termination Requirements......................
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders................................
Section 11.2 Access to List of Holders......................................
Section 11.3 Acts of Holders of Certificates................................
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration...........................................
Section 12.2 Prohibited Transactions and Activities.........................
Section 12.3 Modifications of Mortgage Loans................................
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status........................................................
Section 12.5 Grantor Trust Administration...................................
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness..........................
Section 13.2 Certain Information to be Provided by the Master Servicers,
the Special Servicers, any Primary Servicer and the Trustee...
Section 13.3 Filing Obligations.............................................
Section 13.4 Form 10-D Filings..............................................
Section 13.5 Form 10-K Filings..............................................
Section 13.6 Xxxxxxxx-Xxxxx Certification...................................
Section 13.7 Form 8-K Filings...............................................
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings; Amendments to
Exchange Act Reports..........................................
Section 13.9 Annual Compliance Statements...................................
Section 13.10 Annual Reports on Assessment of Compliance with Servicing
Criteria......................................................
Section 13.11 Annual Independent Public Accountants' Servicing Report........
Section 13.12 Exchange Act Reporting and Regulation AB Compliance
Indemnification...............................................
Section 13.13 Amendments.....................................................
Section 13.14 Exchange Act Report Signatures; Article XIII Notices...........
Section 13.15 Termination of the Trustee and Sub-Servicers...................
ARTICLE XIV
ADDITIONAL SERVICING PROVISIONS
Section 14.1 Enforcement of Due-on-Sale and Due-on-Encumbrance Clauses;
Assumption Agreements; Other Provisions.......................
Section 14.2 Modifications, Waivers, Amendments and Consents................
Section 14.3 Primary Servicer Authority.....................................
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Binding Nature of Agreement....................................
Section 15.2 Entire Agreement...............................................
Section 15.3 Amendment......................................................
Section 15.4 GOVERNING LAW..................................................
Section 15.5 Notices........................................................
Section 15.6 Severability of Provisions.....................................
Section 15.7 Indulgences; No Waivers........................................
Section 15.8 Headings Not to Affect Interpretation..........................
Section 15.9 Benefits of Agreement..........................................
Section 15.10 Special Notices to the Rating Agencies.........................
Section 15.11 Counterparts...................................................
Section 15.12 Intention of Parties...........................................
Section 15.13 Recordation of Agreement.......................................
Section 15.14 Rating Agency Monitoring Fees..................................
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2 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-M Certificate
EXHIBIT A-7 Form of Class A-J Certificate
EXHIBIT A-8 Form of Class B Certificate
EXHIBIT A-9 Form of Class C Certificate
EXHIBIT A-10 Form of Class D Certificate
EXHIBIT A-11 Form of Class E Certificate
EXHIBIT A-12 Form of Class F Certificate
EXHIBIT A-13 Form of Class G Certificate
EXHIBIT A-14 Form of Class H Certificate
EXHIBIT A-15 Form of Class J Certificate
EXHIBIT A-16 Form of Class K Certificate
EXHIBIT A-17 Form of Class L Certificate
EXHIBIT A-18 Form of Class M Certificate
EXHIBIT A-19 Form of Class N Certificate
EXHIBIT A-20 Form of Class O Certificate
EXHIBIT A-21 Form of Class P Certificate
EXHIBIT A-22 Form of Class EI Certificate
EXHIBIT A-23 Form of Class R-I Certificate
EXHIBIT A-24 Form of Class R-II Certificate
EXHIBIT A-25 Form of Class R-III Certificate
EXHIBIT A-26 Form of Class X Certificate
EXHIBIT A-27 Form of Class X-Y Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates
(Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement for Transfers
of REMIC Residual Certificates (Section 3.3(e))
EXHIBIT E-2 Form of Transferor Certificate for Transfers of REMIC
Residual Certificates (Section 3.3(e))
EXHIBIT F Form of Transferor Certificate for Transfers of
Regulation S Certificates
EXHIBIT G [Reserved]
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate
(Section 3.7(d))
EXHIBIT J List of Loans to Which Excess Servicing Fees Are Paid
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (MSMC)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (Natixis)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (SunTrust)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (NCB, FSB)
EXHIBIT L [Reserved]
EXHIBIT M Form of Monthly Certificateholders Report
(Section 5.4(a))
EXHIBIT N [Reserved]
EXHIBIT O [Reserved]
EXHIBIT P [Reserved]
EXHIBIT Q [Reserved]
EXHIBIT R [Reserved]
EXHIBIT S-1A Form of Power of Attorney to General Master Servicer
(Section 8.3(c))
EXHIBIT S-1B Form of Power of Attorney to NCB Master Servicer
(Section 8.3(c))
EXHIBIT S-2A Form of Power of Attorney to General Special Servicer
(Section 9.4(a))
EXHIBIT S-2B Form of Power of Attorney to Co-op Special Servicer
(Section 9.4(a))
EXHIBIT T Form of Subordination Agreement for NCB, FSB Subordinate
Debt
EXHIBIT U [Reserved]
EXHIBIT V [Reserved]
EXHIBIT W [Reserved]
EXHIBIT X [Reserved]
EXHIBIT Y Investor Certification (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification regarding Defeasance of
Mortgage Loan (Section 8.3(h))
EXHIBIT AA Additional Disclosure Notification
EXHIBIT BB-1 Form of Xxxxxxxx-Xxxxx Certification (Section 13.6)
EXHIBIT BB-2 Form of Master Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-3 Form of Special Servicer Performance Certification
(Section 13.6)
EXHIBIT BB-4 Form of Trustee Performance Certification (Section 13.6)
EXHIBIT BB-5 Form of Reporting Sub-Servicer Performance Certification
(Section 13.6)
SCHEDULE I MSMC Loan Schedule
SCHEDULE II Natixis Loan Schedule
SCHEDULE III SunTrust Loan Schedule
SCHEDULE IV NCB, FSB Loan Schedule
SCHEDULE V Mortgage Loans for which Disbursement of Earnouts and
Holdbacks to be processed by General Special Servicer
SCHEDULE VI [Reserved]
SCHEDULE VII List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VIII Certain Escrow Accounts for Which a Report Under
Section 5.1(g) is Required
SCHEDULE IX List of Mortgagors that are Third-Party Beneficiaries
Under Section 2.3(a)
SCHEDULE X [Reserved]
SCHEDULE XI Earn-Out Reserves
SCHEDULE XII List of Mortgage Loans for which a Scheduled Payment is
Due After the End of a Collection Period
SCHEDULE XIII List of Mortgage Loans that Permit Voluntary Principal
Prepayment Without Payment of a Full Month's Interest
SCHEDULE XIV [Reserved]
SCHEDULE XV [Reserved]
SCHEDULE XVI Relevant Servicing Criteria
SCHEDULE XVII Additional Form 10-D Disclosure
SCHEDULE XVIII Additional Form 10-K Disclosure
SCHEDULE XIX Form 8-K Disclosure Information
SCHEDULE XX Seller Sub-Servicers
THIS POOLING AND SERVICING AGREEMENT is dated as of March 1, 2007 (this
"Agreement") among XXXXXX XXXXXXX CAPITAL I INC., a Delaware corporation, as
depositor (the "Depositor"), XXXXX FARGO BANK, N.A., as a master servicer (the
"General Master Servicer"), LNR PARTNERS, INC., as the special servicer (the
"General Special Servicer"), NCB, FSB, as a master servicer (the "NCB Master
Servicer"), NATIONAL CONSUMER COOPERATIVE BANK, as a special servicer (the
"Co-op Special Servicer") and U.S. BANK NATIONAL ASSOCIATION, as trustee of the
Trust, as paying agent and as certificate registrar ("Trustee," "Paying Agent"
and "Certificate Registrar").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans from
Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), SunTrust Bank, as
seller ("SunTrust"), Natixis Real Estate Capital Inc. (formerly IXIS Real Estate
Capital Inc.), as seller ("Natixis"), and NCB, FSB, as seller ("NCB, FSB"), and
will be the owner of the Mortgage Loans and the other property being conveyed by
it to the Trustee for inclusion in the Trust which is hereby created. On the
Closing Date, the Depositor will acquire (i) the REMIC I Regular Interests and
the Class R-I Certificates as consideration for its transfer to the Trust of the
Mortgage Loans (other than any Excess Interest payable thereon) and the other
property constituting REMIC I; (ii) the REMIC II Regular Interests and the Class
R-II Certificates as consideration for its transfer of the REMIC I Regular
Interests to the Trust; (iii) the REMIC III Certificates as consideration for
its transfer of the REMIC II Regular Interests to the Trust; and (iv) the Class
EI Certificates as consideration for its transfer of the Excess Interest to the
Trust. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II, (C) the REMIC III Certificates representing in
the aggregate the entire beneficial ownership of REMIC III and (D) the Class EI
Certificates representing in the aggregate the entire beneficial ownership of
the Class EI Grantor Trust.
Excess Interest received on the Mortgage Loans shall be held in the
Class EI Grantor Trust for the benefit of the Class EI Certificates. All
covenants and agreements made by the Depositor and the Trustee herein with
respect to the Mortgage Loans and the other property constituting the Trust are
for the benefit of the Holders of the REMIC I Regular Interests, the REMIC II
Regular Interests, the REMIC Regular Certificates, the Class EI Certificates and
the Residual Certificates. The parties hereto are entering into this Agreement,
and the Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M
and Class A-J Certificates will be offered for sale pursuant to the prospectus
(the "Prospectus") dated February 6, 2007, as supplemented by the free writing
prospectus dated March 12, 2007 (together with the Prospectus, the "Preliminary
Prospectus Supplement"), and as further supplemented by the final prospectus
supplement dated March 22, 2007 (together with the Prospectus, the "Final
Prospectus Supplement") and the Class X, Class X-Y, Class B, Class C and Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P and Class EI Certificates will be offered for sale pursuant
to a Private Placement Memorandum dated March 22, 2007.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest (other than the Group X-Y REMIC I Regular Interests) will have
a pass-through rate equal to the REMIC I Net Mortgage Rate of the related
Mortgage Loan, an initial principal amount (the initial "Certificate Balance")
equal to the Scheduled Principal Balance as of the Cut-Off Date (as herein
defined) of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a latest possible maturity date set to the Final Rated
Distribution Date (as defined herein). Each Group X-Y REMIC I Regular Interest
will relate to a specific Specially Designated Co-op Loan. Each Group X-Y REMIC
I Regular Interest will have a Pass-Through Rate equal to the Class X-Y Strip
Rate, an initial Notional Amount equal to the Scheduled Principal Balance as of
the Cut Off Date of the Specially Designated Co-op Loan to which such Group X-Y
REMIC I Regular Interest relates, and a latest possible maturity date set to the
Final Rated Distribution Date. Excess Interest shall not be included as an asset
of REMIC I. The Class R-I Certificates will be designated as the sole Class of
residual interests in REMIC I and will have no Certificate Balance, no Notional
Amount and no Pass-Through Rate, but will be entitled to receive the proceeds of
any assets remaining in REMIC I after all Classes of REMIC I Regular Interests
have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances or Notional Amount set forth in the definition thereof. The
Class R-II Certificates will be designated as the sole Class of residual
interests in REMIC II and will have no Certificate Balance and no Pass-Through
Rate, but will be entitled to receive the proceeds of any assets remaining in
REMIC II after all Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class or Component designation, the
corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the Corresponding Components of the Class X Certificates (the
"Corresponding Components") and the Original Class REMIC II Certificate Balance
or Notional Balance for each Class of Principal Balance Certificates and the
Class X-Y Certificates (the "Corresponding Certificates").
Original
Class Certificate Corresponding REMIC Original REMIC II Corresponding
Balance or Notional II Regular Certificate Balance Component of Class X
Corresponding Certificates Balance Interests (1) or Notional Balance Certificates (1)
---------------------------- ------------------- ------------------- ------------------- --------------------
Class A-1 $43,000,000 A-1 $43,000,000 A-1
Class A-1A $477,014,000 A-1A $477,014,000 A-1A
Class A-2 $114,800,000 A-2 $114,800,000 A-2
Class A-3 $64,000,000 A-3 $64,000,000 A-3
Class A-4 $448,816,000 A-4 $448,816,000 A-4
Class A-M $163,947,000 A-M $163,947,000 A-M
Class A-J $149,601,000 A-J $149,601,000 A-J
Class X-Y $131,338,831 X-Y $131,338,831 N/A
Class B $32,790,000 B $32,790,000 B
Class C $16,395,000 C $16,395,000 C
Class D $16,394,000 D $16,394,000 D
Class E $14,346,000 E $14,346,000 E
Class F $18,444,000 F $18,444,000 F
Class G $14,345,000 G $14,345,000 G
Class H $18,444,000 H $18,444,000 H
Class J $8,198,000 J $8,198,000 J
Class K $2,049,000 K $2,049,000 K
Class L $4,099,000 L $4,099,000 L
Class M $6,148,000 M $6,148,000 M
Class N $2,049,000 N $2,049,000 N
Class O $6,148,000 O $6,148,000 O
Class P $18,444,501 P $18,444,501 P
---------
(1) The REMIC II Regular Interest and the Component of the Class X Certificates
that correspond to any particular Class of Principal Balance Certificates
also correspond to each other and, accordingly, constitute the
"Corresponding REMIC II Regular Interest" and the "Corresponding
Component," respectively, with respect to each other.
REMIC III
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC III Certificates comprising
the interests in REMIC III created hereunder.
Initial Aggregate
REMIC Regular Approximate Initial Certificate Balance Final Scheduled
Certificate Designation Pass-Through Rate(a) or Notional Amount Distribution Date(b)
----------------------- -------------------- ------------------- --------------------
Class A-1 5.050% $43,000,000 1/15/2012
Class A-1A 5.312% $477,014,000 2/15/2017
Class A-2 5.241% $114,800,000 3/15/2012
Class A-3 5.331% $64,000,000 8/15/2016
Class A-4 5.364% $448,816,000 2/15/2017
Class A-M 5.406% $163,947,000 3/15/2017
Class A-J 5.438% $149,601,000 4/15/2017
Class X 0.615% $1,639,471,501 N/A
Class X-Y 0.103% $131,338,831 N/A
Class B 5.517% $32,790,000 4/15/2017
Class C 5.557% $16,395,000 4/15/2017
Class D 5.586% $16,394,000 4/15/2017
Class E 5.685% $14,346,000 4/15/2017
Class F 5.977% $18,444,000 4/15/2017
Class G 5.977% $14,345,000 4/15/2017
Class H 5.977% $18,444,000 4/15/2017
Class J 5.059% $8,198,000 4/15/2017
Class K 5.059% $2,049,000 7/15/2017
Class L 5.059% $4,099,000 10/15/2018
Class M 5.059% $6,148,000 1/15/2019
Class N 5.059% $2,049,000 1/15/2019
Class O 5.059% $6,148,000 1/15/2019
Class P 5.059% $18,444,501 11/15/2026
Class R-III(c) N/A N/A N/A
---------
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate."
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments) will
be made on the Mortgage Loans in accordance with their terms (except that
each ARD Loan will be prepaid in full on its Anticipated Repayment Date) in
the case of the REMIC Regular Certificates.
(c) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all REMIC
Regular Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
Class EI Grantor Trust
Each Class EI Certificate will be entitled to Excess Interest (neither
of which will be a part of any REMIC Pool). The parties intend that (i) the
portions of the Trust representing the Excess Interest and the Excess Interest
Sub-account (such portion of the Trust, the "Class EI Grantor Trust") shall be
treated as a grantor trust under subpart E of Part 1 of subchapter J of Chapter
1 of Subtitle A of the Code and (ii) the Class EI Certificates shall represent
pro rata undivided beneficial interests in the portion of the Trust consisting
of the entitlement to receive Excess Interest.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $1,461,178,000.
As provided herein, with respect to the Trust, the Trustee will make an
election for the segregated pool of assets described in the first paragraph of
Section 12.1(a) hereof (including the Mortgage Loans (other than the Excess
Interest payable with respect to such Mortgage Loans)) to be treated for federal
income tax purposes as a real estate mortgage investment conduit ("REMIC I").
The REMIC I Regular Interests will be designated as the "regular interests" in
REMIC I and the Class R-I Certificates will be designated as the sole Class of
"residual interests" in REMIC I for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Trustee will make an
election for the segregated pool of assets described in the second paragraph of
Section 12.1(a) hereof consisting of the REMIC I Regular Interests to be treated
for federal income tax purposes as a real estate mortgage investment conduit
("REMIC II"). The REMIC II Regular Interests will be designated as the "regular
interests" in REMIC II and the Class R-II Certificates will be designated as the
sole Class of "residual interests" in REMIC II for purposes of the REMIC
Provisions.
As provided herein, with respect to the Trust, the Trustee will make an
election for the segregated pool of assets described in the third paragraph of
Section 12.1(a) hereof consisting of the REMIC II Regular Interests to be
treated for federal income tax purposes as a real estate mortgage investment
conduit ("REMIC III"). The REMIC Regular Certificates will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates (together with
the REMIC Regular Certificates, the "REMIC III Certificates") will be designated
as the sole Class of "residual interests" in REMIC III for purposes of the REMIC
Provisions.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1940 Act" means the Investment Company Act of 1940, as amended.
"2007-HQ11 Depositor" means the "Depositor" under the 2007-HQ11 Pooling
and Servicing Agreement, which as of the date hereof is Xxxxxx Xxxxxxx Capital I
Inc.
"2007-HQ11 Master Servicer" means the master servicer under the
2007-HQ11 Pooling and Servicing Agreement, which as of the date hereof is
Capmark Finance Inc.
"2007-HQ11 Paying Agent" means the "Paying Agent," "Certificate
Registrar" and "Authenticating Agent" under the 2007-HQ11 Pooling and Servicing
Agreement, which as of the date hereof is LaSalle Bank National Association.
"2007-HQ11 Pooling and Servicing Agreement" means the pooling and
servicing agreement dated as of February 1, 2007 among the 2007-HQ11 Depositor,
the 2007-HQ11 Master Servicer, the 2007-HQ11 Special Servicer, the 2007-HQ11
Trustee and the 2007-HQ11 Paying Agent, pursuant to which the Commercial
Mortgage Pass-Through Certificates, Series 2007-HQ11, were issued.
"2007-HQ11 Special Servicer" means the special servicer under the
2007-HQ11 Pooling and Servicing Agreement, which as of the date hereof is X.X.
Xxxxxx Company, Inc.
"2007-HQ11 Trustee" means the "Trustee" under the 2007-HQ11 Pooling and
Servicing Agreement, which as of the date hereof is Xxxxx Fargo Bank, N.A.
"Accountant" means a Person engaged in the practice of accounting who
is Independent.
"Accrued Certificate Interest" means, with respect to each Distribution
Date and any Class of Interests or Principal Balance Certificates, interest
accrued during the Interest Accrual Period relating to such Distribution Date on
the Aggregate Certificate Balance of such Class or Interest as of the close of
business on the immediately preceding Distribution Date at the respective rates
per annum set forth in the definition of the applicable Pass-Through Rate for
each such Class. Accrued Certificate Interest on the Class X Certificates for
each Distribution Date will equal the Accrued Component Interest for the related
Interest Accrual Period for all of the Components for such Distribution Date.
Accrued Certificate Interest on the Class X-Y Certificates for each Distribution
Date will equal the Class X-Y Interest Amount.
"Accrued Component Interest" With respect to each Component of the
Class X Certificates for any Distribution Date, one month's interest at the
Class X Strip Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated on a 30/360 basis and, with respect to any Component and any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Acquisition Date" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of each Mortgaged Property securing any Loan Group).
"Additional Disclosure Notification" means the form of notification to
be included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Notification, which is attached hereto as
Exhibit AA.
"Additional Form 10-D Disclosure" has the meaning set forth in Section
13.4.
"Additional Form 10-K Disclosure" has the meaning set forth in Section
13.5.
"Additional Servicer" means each Affiliate of the Master Servicers,
MSMC, Natixis, NCB, FSB, the Trustee or the Depositor that Services any of the
Mortgage Loans and each Person, other than the Special Servicers, who is not an
Affiliate of the Master Servicers, MSMC, Natixis, NCB, FSB, the Trustee or the
Depositor, and who Services 10% or more of the Mortgage Loans (based on their
Principal Balance). For clarification purposes, the Trustee is an Additional
Servicer.
"Additional Trust Expense" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees, (ii) Advance
Interest that cannot be paid from Late Fees and default interest in accordance
with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicers, the
Special Servicers, any Primary Servicer, the 2007-HQ11 Master Servicer, the
2007-HQ11 Special Servicer, the 2007-HQ11 Trustee, the 2007-HQ11 Paying Agent,
the Certificate Registrar, the Trustee, the Paying Agent (or any other Person)
pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid,
any federal, state, or local taxes imposed on the Trust or its assets and paid
from amounts on deposit in the Certificate Accounts or Distribution Account, (v)
the amount of any Advance plus interest due thereon and Unliquidated Advances
that are not recovered from the proceeds of a Mortgage Loan or Loan Group upon a
Final Recovery Determination, (vi) to the extent not included in the calculation
of a Realized Loss and not covered by indemnification by one of the parties
hereto or otherwise, any other unanticipated cost, liability, or expense (or
portion thereof) of the Trust (including costs of collecting such amounts or
other Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or the Special Servicer, in the case of a
Specially Serviced Mortgage Loan) will not, recover from the related Mortgagor
or Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof; and (vii) with respect to the
Non-Trust-Serviced Pari Passu Loan, the pro rata portion of any fees, costs and
expenses that relate directly to the servicing of the Non-Trust-Serviced Loan
Group and as to which the 2007-HQ11 Master Servicer, the 2007-HQ11 Special
Servicer or the 2007-HQ11 Trustee (in respect of the servicing advances made by
it for the Non-Trust Serviced Loan Group and excluding the trustee fee and costs
and expenses related to REMIC or the trust fund in accordance with the 2007-HQ11
Pooling and Servicing Agreement) are entitled to reimbursement pursuant to the
2007-HQ11 Pooling and Servicing Agreement, that is allocable to the
Non-Trust-Serviced Pari Passu Loan pursuant to the related Intercreditor
Agreement, to the extent that such amounts are not payable out of proceeds on
the Non-Trust-Serviced Pari Passu Loan; provided, however, that in the case of
each Whole Loan, "Additional Trust Expense" shall not include any of the
foregoing amounts that have been recovered from the related Mortgagor or
Mortgaged Property. Notwithstanding anything in this Agreement to the contrary,
"Additional Trust Expenses" shall not include allocable overhead of a Master
Servicer, a Special Servicer, the 2007-HQ11 Master Servicer, the 2007-HQ11
Special Servicer, the 2007-HQ11 Trustee, the 2007-HQ11 Paying Agent, the
Trustee, the Paying Agent or the Certificate Registrar such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses, and similar internal costs and expenses, except to the extent
specifically allowed in this Agreement.
"Adjusted Mortgage Rate" means, with respect to any Mortgage Loan that
accrues interest on the basis of a 360-day year consisting of twelve 30-day
months ("30/360 basis"), and with respect to any Distribution Date, the Mortgage
Rate thereof minus the Administrative Cost Rate. For any Mortgage Loan that
accrue(s) interest on a basis other than that of a 30/360 basis and with respect
to any Distribution Date, the rate that, when applied to the Principal Balance
of the related Mortgage Loan (on the day prior to the Due Date preceding such
Distribution Date) on a 30/360 basis for the related loan accrual period, yields
the amount of interest actually due on such Mortgage Loan on the Due Date
preceding such Distribution Date (less the Administrative Cost Rate for such
Mortgage Loan); provided that for purposes of this definition, (i) the Adjusted
Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year (in either case, unless the related Distribution Date
is the Final Distribution Date), shall be determined net of any amounts
transferred to the Interest Reserve Accounts and (ii) the Adjusted Mortgage Rate
for the loan accrual period relating to the Due Date in March (commencing in
March 2007) (or February if the related Distribution Date is the Final
Distribution Date) shall be determined taking into account the addition of any
amounts withdrawn from the Interest Reserve Accounts, provided, further, that if
the Maturity Date on any Mortgage Loan occurs on the Due Date in January or
February or if there is a Principal Prepayment on any Mortgage Loan on the Due
Date in January or February, then the Adjusted Mortgage Rate shall be determined
taking into account the addition of any amounts withdrawn from the Interest
Reserve Account for such month.
"Administrative Cost Rate" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate, the Trustee
Fee Rate and, in the case of the Non-Trust Serviced Pari Passu Loan, the Pari
Passu Loan Servicing Fee Rate; provided, that, in the case of the RREEF
Portfolio Pari Passu Loan, the Administrative Cost Rate shall be equal to the
sum of the Pari Passu Loan Servicing Fee Rate and the Trustee Fee Rate.
"Advance" means either a P&I Advance or a Servicing Advance.
"Advance Interest" means interest payable to a Master Servicer, a
Special Servicer or the Trustee on outstanding Advances (other than Unliquidated
Advances) pursuant to Section 4.5 of this Agreement and any interest payable to
the 2007-HQ11 Master Servicer or the 2007-HQ11 Trustee, with respect to the Pari
Passu Loan Nonrecoverable Advances pursuant to Section 4.4(b) hereof.
"Advance Rate" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or, if no longer so published, such other publication as determined by the
Trustee in its reasonable discretion.
"Adverse Grantor Trust Event" shall mean any action taken by a Person
or the failure of a Person to take any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Class EI Grantor Trust as a grantor trust under the Grantor Trust
Provisions or result in the imposition of a tax upon the Class EI Grantor Trust
or any of their respective assets or transactions.
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(f),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"Affiliate" means, 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.
"Aggregate Certificate Balance" means the aggregate of the Certificate
Balances of the Principal Balance Certificates, the REMIC I Regular Interests
(other than the Group X-Y REMIC I Regular Interests), the REMIC II Regular
Interests (other than REMIC II Regular Interest X-Y) or, collectively, the REMIC
Regular Certificates, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates, REMIC I Regular Interests
(other than the Group X-Y REMIC I Regular Interests) or REMIC II Regular
Interests (other than REMIC II Regular Interest X-Y), Aggregate Certificate
Balance shall mean the aggregate of the Certificate Balances of all Certificates
or Interests, as the case may be, of that Class at any date of determination.
"Aggregate Principal Balance" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"Anticipated Repayment Date" means, with respect to the ARD Loans, the
date on which a substantial principal payment on an ARD Loan is anticipated to
be made, as set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent state certified MAI
appraiser having at least five years' experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan (other than
the Non-Trust Serviced Pari Passu Loan), not later than the earliest of (i) the
date 120 days after the occurrence of any delinquency in payment with respect to
such Mortgage Loan if such delinquency remains uncured, (ii) the date 30 days
after receipt of notice that the related Mortgagor has filed a bankruptcy
petition or the related Mortgagor has become the subject of involuntary
bankruptcy proceedings or the related Mortgagor has consented to the filing of a
bankruptcy proceeding against it or a receiver is appointed in respect of the
related Mortgaged Property, provided such petition or appointment is still in
effect, (iii) the date that is 30 days following the date the related Mortgaged
Property becomes an REO Property and (iv) the effective date of any modification
to a Money Term of such Mortgage Loan, other than an extension of the date that
a Balloon Payment is due for a period of less than six months from the original
due date of such Balloon Payment and, with respect to the Non-Trust Serviced
Pari Passu Loan, an "appraisal event" or similar term as determined pursuant to
the 2007-HQ11 Pooling and Servicing Agreement..
"Appraisal Reduction" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) less the undrawn principal amount of any letter of
credit or debt service reserve, if applicable, that is then securing such
Mortgage Loan, (ii) to the extent not previously advanced by the Master Servicer
or the Trustee, all accrued and unpaid interest on such Mortgage Loan (or, in
the case of an REO Property, the related REO Mortgage Loan), at a per annum rate
equal to the Mortgage Rate, (iii) all unreimbursed Advances (including
Unliquidated Advances) and interest on Advances (other than Unliquidated
Advances) at the Advance Rate with respect to such Mortgage Loan (or, in the
case of an REO Property, the related REO Mortgage Loan) and (iv) to the extent
funds on deposit in any applicable Escrow Accounts are not sufficient therefor,
and to the extent not previously advanced by the applicable Master Servicer, the
applicable Special Servicer or the Trustee, all currently due and unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents and other amounts which were required to be deposited in any Escrow
Account (but were not deposited) in respect of such Mortgaged Property or REO
Property, as the case may be, over (B) 90% of the Appraised Value (net of any
prior mortgage liens) of such Mortgaged Property or REO Property as determined
by such Appraisal or internal valuation, as the case may be, plus the full
amount of any escrows held by or on behalf of the Trustee as security for the
Mortgage Loan (less the estimated amount of the obligations anticipated to be
payable in the next twelve months to which such escrows relate). With respect to
each Mortgage Loan that is cross-collateralized with any other Mortgage Loan,
the value of each Mortgaged Property that is security for each Mortgage Loan in
such cross-collateralized group, as well as the outstanding amounts under each
such Mortgage Loan shall be taken into account when calculating such Appraisal
Reduction. Each Appraisal or internal valuation for a Required Appraisal Loan
shall be updated annually, for so long as an Appraisal Reduction exists, from
the date of such Appraisal or internal valuation, and each Appraisal (as defined
in the 2007-HQ11 Pooling and Servicing Agreement) or internal valuation of the
Non-Trust Serviced Pari Passu Loan shall be updated as set forth in the
2007-HQ11 Pooling and Servicing Agreement. In addition, the Operating Adviser
may at any time request the applicable Special Servicer to obtain (at the
Operating Adviser's expense) an updated Appraisal, with a corresponding
adjustment to the amount of the Appraisal Reduction. The Appraisal Reduction for
each Required Appraisal Loan will be recalculated based on subsequent
Appraisals, internal valuations or updates. Any Appraisal Reduction for any
Mortgage Loan shall be reduced to reflect any Realized Principal Losses on the
Required Appraisal Loan. Each Appraisal Reduction will be reduced to zero as of
the date the related Mortgage Loan is brought current under the then current
terms of the Mortgage Loan for at least three consecutive months, and no
Appraisal Reduction will exist as to any Mortgage Loan after it has been paid in
full, liquidated, repurchased or otherwise disposed of. Any Appraisal Reduction
in respect of the Non-Trust-Serviced Pari Passu Loan shall be calculated by the
2007-HQ11 Master Servicer in accordance with and pursuant to the terms of the
2007-HQ11 Pooling and Servicing Agreement.
"Appraised Value" means (i) with respect to any Mortgaged Property
(other than the Mortgaged Property securing a Co-op Mortgage Loan or the
Non-Trust Serviced Pari Passu Loan), the appraised value thereof determined by
an Appraisal of the Mortgaged Property securing such Mortgage Loan made by an
Independent appraiser selected by the General Master Servicer, the NCB Master
Servicer or the General Special Servicer, as applicable or, in the case of an
internal valuation performed by the General Special Servicer pursuant to Section
6.9, the value of the Mortgaged Property determined by such internal valuation,
and (ii) with respect to each Mortgaged Property securing a Co-op Mortgage Loan,
the appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Co-op Mortgage Loan made by an Independent appraiser selected by
the NCB Master Servicer or the Co-op Special Servicer, as applicable, or in the
case of an internal valuation performed by the Co-op Special Servicer pursuant
to Section 6.9, the value of the Mortgaged Property determined by such internal
valuation, each determined as if such property were operated as a
cooperatively-owned multifamily residential building (generally equaling the
gross sellout value of all cooperative units in such residential cooperative
property (applying a discount as determined by the appraiser for rent regulated
and rent controlled units) plus the amount of the underlying debt encumbering
such residential cooperative property).
"ARD Loan" means the Mortgage Loan designated on the Mortgage Loan
Schedule as Mortgage Loan No. 103.
"Assignment of Leases" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect thereof, on or before the end of the
Collection Period in which such Maturity Date occurs) and for any subsequent Due
Date therefor as of which such Mortgage Loan remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Mortgage Loan
on such Due Date, if it had been required to continue to accrue interest in
accordance with its terms, and to pay principal in accordance with the
amortization schedule in effect immediately prior to, and without regard to the
occurrence of, its most recent Maturity Date (as such may have been extended in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted
or agreed to by the applicable Master Servicer or the applicable Special
Servicer pursuant to the terms hereof) and (ii) with respect to any REO Mortgage
Loan for any Due Date therefor as of which the related REO Property remains part
of the Trust, the scheduled monthly payment of principal and interest deemed to
be due in respect thereof on such Due Date equal to the Scheduled Payment (or,
in the case of a Balloon Mortgage Loan described in the preceding clause of this
definition, the Assumed Scheduled Payment) that was due in respect of the
related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage
Loan.
"Authenticating Agent" means any authenticating agent serving in such
capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set forth in
Section 4.6(a) hereof.
"Available Distribution Amount" means, with respect to any Distribution
Date and the Mortgage Loans, an amount equal to the aggregate of the following
amounts (a) all amounts on deposit in the Distribution Account as of the
commencement of business on such Distribution Date that represent payments and
other collections on or in respect of the Mortgage Loans and any REO Properties
that were (x) received by a Master Servicer or the Special Servicer through the
end of the related Collection Period (other than any portion thereof that
constituted a portion of the Available Distribution Amount for a prior
Distribution Date as described in clause (a)(y) below) or (y) remitted by the
applicable Master Servicer on the related Master Servicer Remittance Date
pursuant to Section 5.1(h), exclusive of (i) any such amounts that were
deposited in the Distribution Account in error, (ii) amounts that are payable or
reimbursable to any Person other than the Certificateholders (including amounts
payable to the Master Servicers in respect of unpaid Master Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the Special
Servicers in respect of unpaid Special Servicer Compensation, the Trustee in
respect of unpaid Trustee Fees or to the parties entitled thereto in respect of
the unpaid Excess Servicing Fees), (iii) amounts that constitute Prepayment
Premiums or Yield Maintenance Charges, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year (unless the
related Distribution Date is the final Distribution Date), the Interest Reserve
Amounts with respect to Interest Reserve Loans deposited in the Interest Reserve
Accounts, (v) Excess Interest and (vi) Scheduled Payments collected but due on a
Due Date subsequent to the related Collection Period (other than any portion
thereof described in clause (a)(y) above) and (b) if and to the extent not
already among the amounts described in clause (a), (i) the aggregate amount of
any P&I Advances made by a Master Servicer or the Trustee for such Distribution
Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of
any Compensating Interest payments made by the Master Servicers for such
Distribution Date pursuant to the terms hereof, and (iii) if a Distribution Date
occurs in March of any year, commencing March 2007 (or February if the related
Distribution Date is the final Distribution Date) or if a Maturity Date or
Principal Prepayment falls on a January or February of any year, the aggregate
of the Interest Reserve Amounts then held on deposit in the Interest Reserve
Accounts in respect of the related Interest Reserve Loan or Interest Reserve
Loans. For purposes of the definition of "Available Distribution Amount," the
Scheduled Payments and Principal Prepayments referred to in the proviso in
Section 5.2(b) shall be deemed to have been collected in the prior Collection
Period.
"Balloon Mortgage Loan" means a Mortgage Loan that provides for
Scheduled Payments based on an amortization schedule that is significantly
longer than its term to maturity and that is expected to have a remaining
principal balance equal to or greater than 5% of its original principal balance
as of its stated maturity date, unless prepaid prior thereto.
"Balloon Payment" means, with respect to any Balloon Mortgage Loan, the
Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"Banking Day" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"Bankruptcy Loss" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"Base Interest Fraction" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium or Yield Maintenance Charge, and with respect to any Class of
Certificates, a fraction (A) whose numerator is the greater of (x) zero and (y)
the difference between (i) the Pass-Through Rate on that Class of Certificates
and (ii) the Discount Rate used in calculating the Prepayment Premium or Yield
Maintenance Charge with respect to the Principal Prepayment (or the current
Discount Rate if not used in such calculation) and (B) whose denominator is the
difference between (i) the Mortgage Rate on the related Mortgage Loan or, with
respect to a Specially Designated Co-op Mortgage Loan, the Net Mortgage Rate on
such Specially Designated Co-op Mortgage Loan and (ii) the Discount Rate used in
calculating the Prepayment Premium or Yield Maintenance Charge with respect to
that Principal Prepayment (or the current Discount Rate if not used in such
calculation), provided, however, that under no circumstances will the Base
Interest Fraction be greater than one. If the Discount Rate referred to above is
greater than or equal to the Mortgage Rate on the related Mortgage Loan (with
respect to the Co-op Mortgage Loans, the Net Mortgage Rate on the related
Mortgage Loan), then the Base Interest Fraction shall equal zero; provided,
however, that if the Discount Rate referred to above is greater than or equal to
the Mortgage Rate on the related Mortgage Loan (with respect to the Co-op
Mortgage Loans, the Net Mortgage Rate on the related Mortgage Loan), but is less
than the Pass-Through Rate on that Class of Certificates, then the Base Interest
Fraction shall be equal to 1.0.
"Book-Entry Certificates" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the states where the Certificate Account,
Distribution Account, Trustee, a Master Servicer, a Primary Servicer or a
Special Servicer are located and are authorized or obligated by law or executive
order to remain closed. Upon the request of any party to this Agreement or the
Operating Adviser, the Trustee, the Paying Agent, each Master Servicer, each
Special Servicer and each Primary Servicer shall provide such party a list of
the legal holidays observed by such entity; provided that each Primary Servicer
shall be required to provide the Operating Adviser and the Master Servicers on
or before the first day of January of each calendar year with a list of each day
that will not be a "Business Day" in the jurisdiction of such Primary Servicer
during such calendar year.
"Cash Liquidation" means, as to any Defaulted Mortgage Loan other than
a Mortgage Loan with respect to which the related Mortgaged Property became REO
Property, the sale of such Defaulted Mortgage Loan. Each Master Servicer shall
maintain records in accordance with the Servicing Standard (and, in the case of
Specially Serviced Mortgage Loans, based on the written reports with respect to
such Cash Liquidation delivered by the applicable Special Servicer to the
applicable Master Servicer), of each Cash Liquidation.
"Category 1 Requests" has the meaning set forth in the Primary
Servicing Agreements for the SunTrust Loans.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.).
"Certificate Account" means one or more separate accounts established
and maintained by each Master Servicer (or any Sub-Servicer or Primary Servicer
on behalf of the applicable Master Servicer) pursuant to Section 5.1(a), each of
which shall be an Eligible Account.
"Certificate Balance" means, with respect to any Certificate (other
than the Class X Certificates, the Class X-Y Certificates, the Class EI
Certificates and the Residual Certificates) or Interest (other than the Group
X-Y REMIC I Regular Interests and the REMIC II Regular Interest X-Y) as of any
Distribution Date, the maximum specified dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (in the case
of a Certificate), or as ascribed thereto in the Preliminary Statement hereto
(in the case of an Interest), minus (A)(i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.5(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2(a) or Section 6.3(a), as the case may be and (ii) all
Realized Losses allocated or deemed to have been allocated to such Interest or
Certificate pursuant to Section 6.6, plus (B) an amount equal to the amounts
identified in clause (I)(C) of the definition of Principal Distribution Amount,
such increases to be allocated to the Principal Balance Certificates or
Interests in sequential order (i.e., to the most senior Class first), in each
case up to the amount of Realized Losses previously allocated thereto and not
otherwise reimbursed hereunder.
"Certificate Owner" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Register" has the meaning provided in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Trustee.
"Certificateholders" has the meaning provided in the definition of
"Holder."
"Certificates" means, collectively, the REMIC III Certificates, the
Class EI Certificates, the Class R-I Certificates, the Class R-II Certificates
and the Class R-III Certificates.
"Certification Parties" has the meaning set forth in Section 13.6.
"Certifying Person" has the meaning set forth in Section 13.6.
"Class" means, with respect to the REMIC I Regular Interests, REMIC II
Regular Interests, REMIC III Certificates and Class EI Certificates, any class
of such Certificates or Interests.
"Class A Certificates" means the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates and Class A-4
Certificates, collectively.
"Class A-1 Certificates," "Class A-1A Certificates," "Class A-2
Certificates," "Class A-3 Certificates," "Class A-4 Certificates," "Class A-M
Certificates," "Class A-J Certificates," "Class X Certificates," "Class X-Y
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 O Certificates," "Class P Certificates," "Class EI
Certificates," "Class R-I Certificates," "Class R-II Certificates," or "Class
R-III Certificates" mean the Certificates designated as "Class A-1," "Class
A-1A," "Class A-2," "Class A-3," "Class X-0," "Xxxxx X-X," "Class A-J," Class
X," "Class X-Y," "Class B," "Class C," "Class D," "Class E," "Class F," "Class
G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N," "Class O,"
"Class P," "Class EI," "Class R-I," "Class R-II" and "Class R-III,"
respectively, on the face thereof, in substantially the form attached hereto as
Exhibits A-1 through A-27.
"Class A-1 Component" means a component of the beneficial interest in
REMIC III evidenced by the Class A-1 Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1.
"Class A-1A Component" means a component of the beneficial interest in
REMIC III evidenced by the Class A-1A Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1A.
"Class A-2 Component" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2.
"Class A-3 Component" means a component of the beneficial interest in
REMIC III evidenced by the Class A-3 Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-3.
"Class A-4 Component" means a component of the beneficial interest in
REMIC III evidenced by the Class A-4 Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4.
"Class A-M Component" means a component of the beneficial interest in
REMIC III evidenced by the Class A-M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-M.
"Class A-J Component" means a component of the beneficial interest in
REMIC III evidenced by the Class A-J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-J.
"Class B Component" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B.
"Class C Component" means a component of the beneficial interest in
REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C.
"Class D Component" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D.
"Class E Component" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E.
"Class EI Grantor Trust" means that portion of the Trust consisting of
Excess Interest and the Excess Interest Sub-account.
"Class F Component" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F.
"Class G Component" means a component of the beneficial interest in
REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G.
"Class H Component" means a component of the beneficial interest in
REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H.
"Class J Component" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"Class K Component" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K.
"Class L Component" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L.
"Class M Component" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest in
REMIC III evidenced by the Class N Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest in
REMIC III evidenced by the Class P Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"Class EI Grantor Trust" means that portion of the Trust consisting of
Excess Interest and the Excess Interest Sub-account.
"Class X Notional Amount" means, with respect to the Class X
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"Class X Strip Rate" means, with respect to any Class of Components for
any Distribution Date, a rate per annum equal to (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Corresponding Certificates.
"Class X-Y Interest Amount" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest accrued on the Class X-Y
Notional Amount during the related Interest Accrual Period at a rate equal to
one twelfth of a per annum rate equal to the Weighted Average Class X-Y Strip
Rate.
"Class X-Y Notional Amount" means, with respect to any Distribution
Date, the aggregate of the Principal Balances of the Specially Designated Co-op
Mortgage Loans (or any successor REO Mortgage Loans), reduced by any Advances of
principal on such Specially Designated Co-op Mortgage Loans (or any successor
REO Mortgage Loans) and losses on those Specially Designated Co-op Mortgage
Loans previously allocated to the Certificateholders.
"Class X-Y Strip Rate" means, with respect to any Specially Designated
Co-op Mortgage Loan (and any successor REO Mortgage Loan with respect thereto),
for any Distribution Date, a rate per annum equal to either: (1) if such
Mortgage Loan accrues interest on a 30/360 basis, 0.10%; and (2) if such
Mortgage Loan accrues interest on a basis other than that of a 30/360 basis, the
product of (a) 0.10%, multiplied by (b) a fraction, the numerator of which is
the number of days in the Interest Accrual Period that corresponds to such
Distribution Date, and the denominator of which 30.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"Clearstream" means Clearstream Banking Luxembourg, societe anonyme.
"Closing Date" means on or about March 29, 2007.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA Advance Recovery Report" means a 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.
"CMSA Bond Level File" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Bond
Level File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee, as applicable.
"CMSA Collateral Summary File" means a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Trustee, as applicable.
"CMSA Comparative Financial Status Report" means a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved 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" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Delinquent Loan Status Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved 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 "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" means a data file substantially in the form of,
and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved 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 "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 Liquidation Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Liquidation 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 and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation 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 Historical Loan Modification and Corrected Mortgage Loan Report"
means a report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally 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 Loan Level Reserve/LOC Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Level Reserve/LOC Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally 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 or the
Special Servicer, as applicable.
"CMSA Loan Periodic Update File" means a monthly data file
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Loan Periodic
Update File" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer, the Special Servicer or the Trustee, as
applicable.
"CMSA Loan Setup File" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Loan Setup File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer, the Special Servicer or the
Trustee, as applicable.
"CMSA NOI Adjustment Worksheet" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved 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 "NOI Adjustment Work" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"CMSA Operating Statement Analysis Report" means a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website, or 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 and, insofar as it requires the presentation of information in
addition to that called for by the form of the "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 applicable.
"CMSA Property File" means a data file substantially in the form of,
and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved 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 "Property 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 Reconciliation of Funds" means a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Reconciliation of Funds" 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 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" means a report substantially in the form of,
and containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or 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 and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "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 applicable.
"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively, as the forms thereof are modified,
expanded or otherwise changed from time to time by the CMSA. With respect to new
reports created and approved by the CMSA, such new reports will be used in this
transaction (provided, however, that insofar as any such new report requires the
presentation of information in addition to that called for by the current CMSA
reports, such new report is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable) and the Depositor shall direct the Trustee as
to whether such reports will be Restricted Servicer Reports or Unrestricted
Servicer Reports. The Trustee shall provide the Master Servicer and Special
Servicer with a copy of such direction within two Business Days after its
receipt. In the case of each Mortgaged Property securing a Co-op Mortgage Loan,
the respective files and reports comprising the CMSA Reports shall present the
Projected Net Cash Flow for such Mortgaged Property and the Debt Service
Coverage Ratio for such Co-op Mortgage Loan, as such terms apply to residential
cooperative properties, if and to the extent that such file or report requires
preparation and/or submission of data concerning net cash flow or debt service
coverage.
"CMSA Servicer Watch List" means a report substantially in the form of,
and containing the information called for in, the downloadable form of "Servicer
Watch List" 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 and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Servicer Watch List" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable; provided, however, that, notwithstanding the foregoing, the NCB
Master Servicer shall not be required to include a Co-op Mortgage Loan on the
Servicer Watch List on account of the Debt Service Coverage Ratio of such Co-op
Mortgage Loan, unless such Debt Service Coverage Ratio shall fall below 0.90x
(for purposes of the calculation of the Debt Service Coverage Ratio of a Co-op
Mortgage Loan for this definition only, the Projected Net Cash Flow of the
related Mortgaged Property shall be adjusted to reflect the actual expenses
incurred by the Mortgagor).
"CMSA Special Servicer Loan File" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Special Servicer Loan File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved 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 "Special Servicer Loan File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Special Servicer, as
applicable.
"CMSA Total Loan Report" means a 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
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, and is reasonably
acceptable to the Master Servicers and the Special Servicer.
"CMSA Website" means the CMSA's website located at "xxx.xxxx.xxx" or
such other primary website as the CMSA may establish for dissemination of its
report forms.
"Co-Lender Agreement" means the RREEF Portfolio Co-Lender Agreement.
"Co-op Mortgage Loan" means any Mortgage Loan that, as of the date it
is first included in the Trust, is secured by a Mortgage that encumbers a
residential cooperative property, as identified on Schedule IV hereto.
"Co-op Special Servicer" means National Consumer Cooperative Bank, or
any successor Special Servicer as herein provided, including without limitation
any successor Special Servicer appointed pursuant to Section 9.39 hereof.
"Co-op Trust Assets" means the Co-op Mortgage Loans, any REO Properties
acquired by the Trust with respect to the Co-op Mortgage Loans and any and all
other related assets of the Trust.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"Collection Period" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or in the case of the first Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the month in
which the Distribution Date occurs.
"Commission" means the Securities and Exchange Commission.
"Compensating Interest" means, with respect to any Distribution Date
and each Master Servicer, an amount equal to the excess of (A) Prepayment
Interest Shortfalls incurred in respect of the Mortgage Loans serviced by such
Master Servicer resulting from Principal Prepayments on such Mortgage Loans (but
not including the Non-Trust Serviced Pari Passu Loan) during the related
Collection Period, over (B) the aggregate of the Prepayment Interest Excesses
received in respect of the Mortgage Loans serviced by such Master Servicer
resulting from Principal Prepayments on such Mortgage Loan (but not including
the Non-Trust Serviced Pari Passu Loan) during the same related Collection
Period. Notwithstanding the foregoing, such Compensating Interest shall not (i)
exceed the portion of the aggregate Master Servicing Fee accrued at a rate per
annum equal to 2 basis points for the related Collection Period calculated in
respect of such Master Servicer's Mortgage Loans, including REO Mortgage Loans
(but not including the Non-Trust Serviced Pari Passu Loan), if such Master
Servicer applied the subject Principal Prepayment in accordance with the terms
of the related Mortgage Loan documents; and (ii) be required to be paid on any
Prepayment Interest Shortfalls incurred in respect of any Specially Serviced
Mortgaged Loans.
"Component" means each of the Class A-1 Component, Class A-1A
Component, Class A-2 Component, Class A-3 Component, Class A-4 Component, Class
A-M Component, Class A-J Component, Class B Component, Class C Component, Class
D Component, Class E Component, Class F Component, Class G Component, Class H
Component, Class J Component, Class K Component, Class L Component, Class M
Component, Class N Component, Class O Component and Class P Component.
"Component Notional Amount" means with respect to each Component and
any date of determination, an amount equal to the then Certificate Balance of
its Corresponding REMIC II Regular Interest.
"Condemnation Proceeds" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan. With respect to the mortgaged
properties securing the Non-Trust Serviced Pari Passu Loan, the Condemnation
Proceeds will include only the portion of such net proceeds that is payable to
the holder of the Non-Trust Serviced Pari Passu Loan pursuant to the 2007-HQ11
Pooling and Servicing Agreement.
"Controlling Class" means the most subordinate Class of REMIC Regular
Certificates outstanding at any time of determination; provided that, if the
aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular Certificates
outstanding. As of the Closing Date, the Controlling Class will be the Class P
Certificates.
"Controlling Person" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"Corporate Trust Office" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose or the transfer of
Certificates, the principal corporate trust office of the Certificate Registrar
and Paying Agent (which is presently located at 0 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx Capital I Inc., Series
2007-IQ13), or at such other address as the Trustee, Certificate Registrar and
Paying Agent may designate from time to time by notice to the
Certificateholders, the Depositor, the Trustee, the Master Servicers and the
Special Servicers).
"Corresponding Certificate" means the Class of Certificates as set
forth in the Preliminary Statement with respect to any Corresponding Component
or any Corresponding REMIC II Regular Interest.
"Corresponding Component" means the Component as set forth in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding REMIC II Regular Interest.
"Corresponding REMIC I Regular Interest" means, with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance (in the case of the Group PB REMIC I Regular Interests) or initial
Notional Amount (in the case of the Group X-Y REMIC I Regular Interests), equal
to the Principal Balance of such Mortgage Loan outstanding as of the Cut-Off
Date, after taking into account all principal and interest payments made or due
prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates or any Corresponding Component.
"Cross-Collateralized Loan" has the meaning set forth in Section 2.3(a)
hereof.
"Custodian" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"Customer" means a broker, dealer, bank, other financial institution or
other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Cut-Off Date" means the end of business on March 1, 2007. The Cut-Off
Date for any Mortgage Loan that has a Due Date on a date other than the first
day of each month shall be the end of business on March 1, 2007 and Scheduled
Payments due in March 2007 with respect to Mortgage Loans not having Due Dates
on the first of each month have been deemed received on March 1, 2007, not the
actual day on which such Scheduled Payments were due.
"Debt Service Coverage Ratio" means either (a) with respect to any
Mortgage Loan (other than a Co-op Mortgage Loan), as of any date of
determination, the ratio of (1) the annual, year-end net cash flow of the
related Mortgaged Property or Mortgaged Properties, determined as provided in
the NOI Adjustment Worksheet based on the most recent annual, year-end operating
statements provided by the Mortgagor (or if no annual, year-end operating
statements have been provided, based on such information provided by the
Mortgagor, including without limitation rent rolls and other unaudited financial
information, as the applicable Master Servicer shall determine in accordance
with the Servicing Standard) to (2) the annualized amount of debt service
payable on that Mortgage Loan or, in the case of Mortgage Loans that are
interest-only, where periodic payments are interest-only for a certain amount of
time after origination after which date the Mortgage Loan amortizes principal
for the remaining term of the Mortgage Loan, the annualized amount of debt
service that will be payable under the Mortgage Loan after the beginning of the
amortization term of the Mortgage Loan, or (b) with respect to any Co-op
Mortgage Loan, as of any date of determination, the ratio of (1) the Projected
Net Cash Flow for the related Mortgaged Property on an annualized basis to (2)
the annualized amount of debt service payable on that Co-op Mortgage Loan.
"Debt Service Reduction Amount" means, with respect to a Due Date and
the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan as a result of any proceeding under bankruptcy law or any similar
proceeding (other than a Deficient Valuation Amount); provided, however, that in
the case of an amount that is deferred as a result of any such proceeding, but
not forgiven, the amount of the reduction shall include only the net present
value (calculated at the related Mortgage Rate) of the reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan that is in default
under the terms of the applicable Mortgage Loan documentation and for which any
applicable grace period has expired.
"Defeasance Collateral" means, with respect to any Defeasance Loan,
"government securities" as defined in Section 2(a)(16) of the Investment Company
Act of 1940 required to be pledged in lieu of prepayment pursuant to the terms
thereof.
"Defeasance Loan" means any Mortgage Loan which requires or permits the
related Mortgagor (or permits the holder of such Mortgage Loan to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation" means, with respect to any Mortgage Loan (other
than the Non-Trust Serviced Pari Passu Loan), a valuation by a court of
competent jurisdiction of the Mortgaged Property relating to such Mortgage Loan
in an amount less than the then outstanding indebtedness under such Mortgage
Loan, which valuation results from a proceeding initiated under the United
States Bankruptcy Code, as amended from time to time, and that reduces the
amount the Mortgagor is required to pay under such Mortgage Loan. With respect
to the Mortgaged Properties securing the Non-Trust Serviced Loan Group, the pro
rata portion of the valuation allocable to the Non-Trust Serviced Pari Passu
Loan pursuant to the terms of the 2007-HQ11 Pooling and Servicing Agreement).
"Deficient Valuation Amount" means, with respect to each Mortgage Loan,
the amount by which the total amount due with respect to such Mortgage Loan or
Serviced Loan Group, as applicable (excluding interest not yet accrued),
including the Principal Balance of such Mortgage Loan (or Serviced Loan Group)
plus any accrued and unpaid interest thereon and any other amounts recoverable
from the Mortgagor with respect thereto pursuant to the terms thereof, is
reduced in connection with a Deficient Valuation.
"Definitive Certificates" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is repurchased from
the Trust pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted.
"Depositor" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Blanket Letter of Representations
dated the Closing Date between the Depositor and the Depository.
"Determination Date" means (a), with respect to any Distribution Date
and any of the Mortgage Loans other than NCB, FSB Loans, the earlier of (i) the
10th day of the month in which such Distribution Date occurs or, if such day is
not a Business Day, the immediately preceding Business Day, and (ii) the 5th
Business Day prior to the related Distribution Date, commencing April 9, 2007 or
(b) with respect to any Distribution Date and any of the NCB, FSB Loans, the
earlier of (i) the 11th day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the immediately preceding Business Day
and (ii) the 4th Business Day prior to the related Distribution Date, commencing
April 10, 2007.
"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the applicable Special Servicer on behalf of the Trustee) shall not
be considered to Directly Operate an REO Property solely because the Trustee (or
the applicable 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, tenant improvements or capital
expenditures with respect to such REO Property (including, without limitation,
construction activity to effect repairs or in connection with leasing activity)
or undertakes any ministerial action incidental thereto.
"Discount Rate" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the applicable Master Servicer will select a comparable publication
to determine the Treasury Rate.
"Disqualified Organization" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
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 REMIC Pools, 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" means, with respect to any
Distribution Date and any Class of Certificates or Interests, the sum of (A)
Accrued Certificate Interest in respect of such Class or Interest, reduced (to
not less than zero) by (i) any Net Aggregate Prepayment Interest Shortfalls for
such Class of Certificates or Interests, allocated on such Distribution Date to
such Class or Interest pursuant to Section 6.7, and (ii) Realized Losses
allocated on such Distribution Date to reduce the Distributable Certificate
Interest payable to such Class or Interest pursuant to Section 6.6, plus (B) the
Unpaid Interest, plus (C) if the Aggregate Certificate Balance is reduced
because of a diversion of principal in accordance with Section 5.2(a)(II)(iv),
and there is a subsequent recovery of amounts as described in Section 6.6(c)(i),
then interest at the applicable Pass-Through Rate that would have accrued and
been distributable with respect to the amount by which the Aggregate Certificate
Balance was so reduced, which interest shall accrue from the date that the
related Realized Loss is allocated through the end of the Interest Accrual
Period related to the Distribution Date on which such amounts are subsequently
recovered.
"Distribution Account" means the Distribution Account maintained by the
Trustee, in accordance with the provisions of Section 5.3, which account shall
be an Eligible Account.
"Distribution Date" means the 15th day of each month or, if such day is
not a Business Day, the next succeeding Business Day, commencing April 16, 2007.
"Due Date" means, with respect to a Mortgage Loan, the date on which a
Scheduled Payment is first due without the application of grace periods.
"Eligible Account" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "F-1" by Fitch and "A-1" by S&P, if the deposits are
to be held in the account for 30 days or less, or (B) long term unsecured debt
obligations are rated at least "AA" or "A" (without regard to any plus or minus)
by Fitch and "AA-" (or "A" (without regard to any plus or minus), if the
short-term unsecured debt obligations are rated at least "A-1") by S&P, if the
deposits are to be held in the account more than 30 days, (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federal or state chartered depository institution or trust company that, in
either case, has 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. Section
9.10(b), (iii) an account or accounts of a depository institution acceptable to
the Rating Agencies, as evidenced by Rating Agency Confirmation with respect to
the use of any such account as a Certificate Account or the Distribution
Account, (iv) in the case of Escrow Accounts with respect to NCB, FSB Loans, any
account maintained with NCB, FSB (provided that NCB, FSB has a combined capital
and surplus of at least $40,000,000) or (v) any other account, the use of which
would not, in and of itself, (A) cause a qualification, downgrade or withdrawal
of any rating then assigned to any Class of Certificates by either Rating Agency
and (B) be inconsistent with the requirements of FASB 140 or any other
interpretations with respect thereto applicable to such accounts.
Notwithstanding anything in the foregoing to the contrary, an account shall not
fail to be an Eligible Account solely because it is maintained with Xxxxx Fargo
Bank, N.A., a wholly owned subsidiary of Xxxxx Fargo & Co., provided that such
subsidiary's or its parent's (A) commercial paper, short-term unsecured debt
obligations or other short-term deposits are at least "F-1" in the case of Fitch
and "A-1" in the case of S&P, if the deposits are to be held in the account for
30 days or less, or (B) long-term unsecured debt obligations are rated at least
"AA" in the case of Fitch and "AA" (or "A" (without regard to any plus or
minus), if the short-term unsecured debt obligations are rated at least "A-1")
in the case of S&P, if the deposits are to be held in the account for more than
30 days.
"Eligible Investments" means any one or more of the following financial
assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to timely
payment of principal and interest by, the United States of America, FNMA,
FHLMC 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; provided that any obligation of FNMA or FHLMC, other than
an unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to
such investment;
(ii) demand or time deposits in, unsecured certificates of deposit of,
money market deposit accounts of, or bankers' acceptances issued by, any
depository institution or trust company (including the Trustee, the Master
Servicers, the Special Servicers, or any Affiliate of the Trustee, a Master
Servicer or a Special Servicer, acting in its commercial capacity)
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 "F-1" by Fitch and "A-1" (without regard to any plus or minus) by
S&P or the long-term unsecured debt obligations of such depository
institution or trust company have been assigned a rating by each Rating
Agency at least equal to "AA" by Fitch and "AA-" by S&P or its equivalent
or, in each case, if not rated by a Rating Agency, then such Rating Agency
has issued a Rating Agency Confirmation;
(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 and where such repurchase obligation will
mature prior to the Business Day preceding the next date upon which, as
described in this Agreement, such amounts are required to be withdrawn from
a Certificate Account and which meets the minimum rating requirement for
such entity described above (or for which Rating Agency Confirmation is
obtained with respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped coupons)
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 securities are rated at least "AA" or its equivalent by each
Rating Agency, unless otherwise specified in writing by the Rating Agency;
provided that securities issued by any particular corporation will not be
Eligible Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation
and held in a Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both non interest bearing discount
obligations and interest bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
rated "F-1+" by Fitch and "A-1" (without regard to any plus or minus) by S&P
(or for which Rating Agency Confirmation is obtained with respect to such
ratings);
(vi) units of investment funds (including money market funds) that are
rated in the highest long term category by Fitch and "AAAm" by S&P (or if
not rated by any such Rating Agency, then such Rating Agency has issued a
Rating Agency Confirmation);
(vii) guaranteed reinvestment agreements maturing within 365 days or
less issued by any bank, insurance company or other corporation whose long
term unsecured debt rating is not less than "AA" (or its equivalent) by
Fitch and S&P, or for which Rating Agency Confirmation is obtained with
respect to such ratings; provided that, with respect to S&P, such agreements
state that funds may be withdrawn at par without penalty;
(viii) any money market funds (including those managed or advised by the
Trustee or its Affiliates) that maintain a constant asset value and that are
rated "AAA" (or its equivalent) by Fitch (if so rated by Fitch) and "AAAm"
or "AAAm G" (or its equivalent) by S&P, and any other demand, money market
or time deposit, or any other obligation, security or investment, with
respect to which Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a discount,
earning a return "in the nature of interest" within the meaning of Treasury
Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of Counsel
delivered to the Trustee by the applicable Master Servicer or Special
Servicer at the applicable Master Servicer's or Special Servicer's expense),
as are acceptable to the Rating Agencies (as evidenced by Rating Agency
Confirmation) and treated as "permitted investments" that are "cash flow
investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicers but not yet deposited in the Certificate
Accounts) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Account" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a Mortgage
Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy
premiums, ground lease payments, reserves for capital improvements, deferred
maintenance, repairs, tenant improvements, leasing commissions, rental
achievements, environmental matters and other reserves or comparable items.
"Euroclear" means the Euroclear system.
"Event of Default" has the meaning set forth in Section 8.28(b).
"Excess Interest" means, with respect to an ARD Loan if such ARD Loan
is not prepaid in full on or before its Anticipated Repayment Date, the excess,
if any of (i) interest accrued at the rate of interest applicable to such
Mortgage Loan after such Anticipated Repayment Date (plus any interest on such
interest as may be provided for under the Mortgage Loan documents) over (ii)
interest accrued at the rate of interest applicable to such Mortgage Loan before
such Anticipated Repayment Date. Excess Interest on an ARD Loan is an asset of
the Trust, but shall not be an asset of any REMIC Pool formed hereunder.
"Excess Interest Sub-account" means an administrative account deemed to
be a sub-account of the Distribution Account, in accordance with the provisions
of Section 5.3. The Excess Interest Sub-account shall not be an asset of any
REMIC Pool formed hereunder.
"Excess Liquidation Proceeds" means, with respect to any Mortgage Loan,
the excess of (i) Liquidation Proceeds of a Mortgage Loan or Serviced Loan
Group, as applicable, or related REO Property, over (ii) the amount that would
have been received if a Principal Prepayment in full had been made with respect
to such Mortgage Loan on the date such proceeds were received plus accrued and
unpaid interest with respect to such Mortgage Loan and all expenses (including
Additional Trust Expenses and Unliquidated Advances) with respect to such
Mortgage Loan.
"Excess Servicing Fee" means, with respect to the Mortgage Loans for
which an "excess servicing fee rate" is designated on the Mortgage Loan
Schedule, the monthly fee payable to the parties set forth on Exhibit J hereto
or their successors and assigns, as holders of excess servicing rights, which
fee shall accrue on the Scheduled Principal Balance of each such Mortgage Loan
immediately prior to the Due Date occurring in each month at the per annum rate
(determined in the same manner as the applicable Mortgage Rate for such Mortgage
Loan is determined for such month) specified on the Mortgage Loan Schedule (the
"Excess Servicing Fee Rate"). Each holder of a right to receive Excess Servicing
Fees is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans as indicated on Exhibit J hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Exchange Certification" means an Exchange Certification substantially
in the form set forth in Exhibit H hereto executed by a holder of an interest in
a Regulation S Global Certificate or a Rule 144A IAI Global Certificate, as
applicable.
"Expense Loss" means a loss realized upon payment by the Trust of an
Additional Trust Expense and with respect to the Non-Trust Serviced Pari Passu
Loan, without duplication, the pro rata portion of similar items to the
Additional Trust Expenses, as such expenses are incurred by the trust formed
pursuant to the 2007-HQ11 Pooling and Servicing Agreement or the parties
thereto, to the extent allocable to the Non-Trust Serviced Pari Passu Loan.
"Extension" has the meaning set forth in Section 9.15(a).
"FASB 140" means 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" means the Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Certification" has the meaning set forth in Section 2.2.
"Final Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Final Rated Distribution Date" means, with respect to each rated Class
of Certificates, the Distribution Date in March 2044.
"Final Recovery Determination" means a determination with respect to:
(i) any Mortgage Loan other than a Specially Serviced Mortgage Loan), by the
applicable Master Servicer in consultation with the applicable Special Servicer
and (ii) with respect to any Specially Serviced Mortgage Loan (including a
Mortgage Loan that became an REO Property) by the applicable Special Servicer,
in each case, in its good faith discretion, consistent with the Servicing
Standard, that all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, Purchase Proceeds and other payments or recoveries which the
applicable Master Servicer or the applicable Special Servicer, as the case may
be, expects to be finally recoverable on such Mortgage Loan, without regard to
any obligation of such Master Servicer or the Trustee, as the case may be, to
make payments from its own funds pursuant to Article IV hereof, have been
recovered. With respect to each Mortgage Loan that is cross-collateralized by
Mortgaged Properties securing other Mortgage Loans, all of the Mortgaged
Properties and other security must be considered in connection with any such
Final Recovery Determination. The applicable Special Servicer shall be required
to provide the applicable Master Servicer with prompt written notice of any
Final Recovery Determination with respect to any Specially Serviced Mortgage
Loan or REO Mortgage Loan upon making such determination. The applicable Master
Servicer shall promptly notify the Trustee of such determination and the Trustee
shall deliver a copy of such notice to each Rating Agency.
"Final Scheduled Distribution Date" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that the ARD Loan is assumed to be repaid on its Anticipated Repayment Date.
"Fitch" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Form 8-K Disclosure Information" has the meaning set forth in Section
13.7.
"General Master Servicer" means Xxxxx Fargo Bank, N.A., and its
permitted successors or assigns.
"General Special Servicer" means LNR Partners, Inc., or any successor
General Special Servicer as herein provided, including without limitation any
successor General Special Servicer appointed pursuant to Section 9.39.
"Global Certificate" means any Rule 144A IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"Grantor Trust Provisions" shall mean those provisions of the Code
relating to grantor trusts, which appear in subpart E, Part I of subchapter J,
and related provisions, and proposed, temporary and final Treasury regulations,
including Treasury Regulations Section 301.7701-4(c)(2), and any published
rulings, notice and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
"Group PB REMIC I Regular Interests" means, collectively, all of the
REMIC I Regular Interests (other than the Group X-Y REMIC I Regular Interests),
which are the REMIC I Regular Interests with principal balances.
"Group X-Y REMIC I Regular Interests" means, collectively, the REMIC I
Regular Interests, which represent interests in the Class X-Y Strip Rates with
respect to the Specially Designated Co-op Mortgage Loans, which are the REMIC I
Regular Interests without principal balances (but have notional amounts for
purposes of accruing interest).
"Holder" means the Person in whose name a Certificate is registered on
the Certificate Register.
"IAI Definitive Certificate" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the
Commission's Regulation S-X. Independent means, when used with respect to any
other Person, a Person who (A) is in fact independent of another specified
Person and any Affiliate of such other Person, (B) does not have any material
direct or indirect financial interest in such other Person or any Affiliate of
such other Person, (C) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (D) is not a member
of the immediate family of a Person defined in clause (B) or (C) above.
"Independent Contractor" means, either (i) with respect to any Mortgage
Loan (A) that is not a Specially Serviced Mortgage Loan, any Person designated
by the applicable Master Servicer (other than any Master Servicer, but which may
be an Affiliate of such Master Servicer), or (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the applicable Special Servicer that
would be an "independent contractor" with respect to a REMIC Pool within the
meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate
investment trust (except that the ownership test set forth in such Section shall
be considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Residual Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive any income
from such Person and provided that the relationship between such Person and such
REMIC is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person (including a Master Servicer or a
Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which
shall be at the expense of the Person delivering such opinion to the Trustee, 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 (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Initial Certification" has the meaning set forth in Section 2.2.
"Inspection Report" means a report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
Inspection Form" available 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 and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Property
Inspection Form" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"Institutional Accredited Investor" means an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the 1933 Act.
"Insurance Policies" means, collectively, any Standard Hazard Insurance
Policy, flood insurance policy, title insurance policy, terrorism insurance
policy or Environmental Insurance Policy relating to the Mortgage Loans or the
Mortgaged Properties in effect as of the Closing Date or thereafter during the
term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under any
Insurance Policy (other than amounts required to be paid over to the Mortgagor
(or used to restore the related Mortgaged Property) pursuant to law, the related
Mortgage Loan or the Servicing Standard). With respect to a mortgaged property
securing the Non-Trust Serviced Loan Group, the Insurance Proceeds will include
only the portion of such net proceeds that is payable to the holder of the
Non-Trust Serviced Pari Passu Loan pursuant to the 2007-HQ11 Pooling and
Servicing Agreement.
"Insured Environmental Event" has the meaning set forth in Section
9.1(f).
"Interest" means a REMIC I Regular Interest or a REMIC II Regular
Interest, as applicable.
"Interest Accrual Period" means, with respect to each Distribution
Date, for each Class of REMIC Regular Certificates, the calendar month
immediately preceding the month in which such Distribution Date occurs.
"Interest Reserve Account" means that Interest Reserve Account
maintained by the Trustee pursuant to Section 5.1(a), which account shall be an
Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section 5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve 30-day
months.
"Interest Reset Date" means the day that is two Banking Days prior to
the start of the related Interest Accrual Period.
"Interested Person" means, as of any date of determination, the Master
Servicers, the Special Servicers, the Depositor, the holder of any related
Junior Indebtedness (with respect to any particular Mortgage Loan), a holder of
50% or more of the Controlling Class, the Operating Adviser, any Independent
Contractor engaged by a Master Servicer or the Special Servicer pursuant to this
Agreement, or any Person actually known to a Responsible Officer of the Trustee
to be an Affiliate of any of them.
"Investment Income" means income and gain realized on the investment of
funds deposited in the Certificate Account.
"Investor-Based Exemption" means any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 90-1 (for transactions by insurance company
pooled separate accounts), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Laws.
"Junior Indebtedness" means any indebtedness of any Mortgagor that is
secured by a lien that is junior in right of payment to the lien of the Mortgage
securing the related Mortgage Note.
"Late Collections" means, with respect to any Mortgage Loan, all
amounts received during any Collection Period, whether as late payments or as
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"Late Fees" means a fee payable to the applicable Master Servicer or
the applicable Special Servicer, as the case may be, to the extent actually
collected from the Mortgagor as provided in the related Mortgage Loan in
connection with a late payment made by such Mortgagor.
"Liquidation Expenses" means reasonable and direct expenses incurred by
the applicable Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses, appraisal fees, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to disposition of the
Specially Serviced Mortgage Loan shall be (i) paid out of income from the
related REO Property, to the extent available, (ii) paid out of related proceeds
from liquidation or (iii) advanced by the applicable Master Servicer or Special
Servicer, subject to Section 4.4 and Section 4.6(d) hereof, as a Servicing
Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.00% and (y)
the Liquidation Proceeds received in connection with full or partial liquidation
of a Specially Serviced Mortgage Loan or related REO Property and any
Condemnation Proceeds or Insurance Proceeds received by the Trust (other than
Liquidation Proceeds received in connection with the Non-Trust-Serviced Pari
Passu Loan, except as set forth in Section 2.3(a) hereof); provided, however,
that (A) in the case of a final disposition consisting of the repurchase of a
Mortgage Loan or REO Property by a Seller pursuant to Section 2.3, such fee will
only be paid by such Seller and due to a Special Servicer if repurchased after
the date that is 90 days (or 180 days, if the related Seller is diligently
attempting to cure or correct the related Material Document Defect or Material
Breach, as the case may be in accordance with the terms and conditions of
Section 2.3(a) hereof) or more after the applicable Seller receives notice of
the breach or defect causing the repurchase; or (B) in the case of a repurchase
of a Mortgage Loan by the holder of a related mezzanine lender, such fee will
only be due to a Special Servicer if repurchased 60 days after a Master
Servicer, Special Servicer or Trustee receives notice of the default causing the
repurchase.
"Liquidation Proceeds" means (i) with respect to the sale or
liquidation of a Mortgage Loan or related REO Property (other than pursuant to
Section 2.3), the proceeds of such sale or liquidation net of Liquidation
Expenses (to the extent not otherwise paid pursuant to Section 4.6(c)) (and with
respect to the sale or liquidation of any REO Property related to the Non-Trust
Serviced Loan Group, any portion of such amounts allocable to the Non-Trust
Serviced Pari Passu Loan) and (ii) with respect to the repurchase of a Mortgage
Loan or an REO Mortgage Loan pursuant to Section 2.3, the Purchase Price of such
Mortgage Loan or REO Mortgage Loan (or such allocable portion) at the time of
such repurchase. With respect to the Non-Trust Serviced Loan Group, the
Liquidation Proceeds will include only the portion of such net proceeds that is
payable to the holder of the Non-Trust Serviced Pari Passu Loan pursuant to the
2007-HQ11 Pooling and Servicing Agreement.
"Liquidation Realized Loss" means, with respect to each Mortgage Loan
or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses, but not including Special Servicing Fees)
incurred in connection with such Mortgage Loan that are payable or reimbursable
to any Person, other than amounts previously treated as Expense Losses or
included in the definition of Liquidation Expenses minus the sum of (i) REO
Income allocated as recoveries of principal or interest on the related Mortgage
Loan, and (ii) with respect to any Mortgage Loan, Liquidation Proceeds, Late
Collections and all other amounts received from the related Mortgagor and
received during the Collection Period in which such Cash Liquidation or REO
Disposition occurred. REO Income and Liquidation Proceeds shall be applied first
against any Expense Losses (to the extent not included in the definition of
Liquidation Expenses) for such Mortgage Loan, the unpaid interest on the
Mortgage Loan, calculated as described in clause (B) above, and then against the
Principal Balance of such Mortgage Loan, calculated as described in clause (A)
above in accordance with Section 1.2(b) hereof.
"Loan Group" means either Loan Group 1 or Loan Group 2, as the case may
be.
"Loan Group 1" means all of the Mortgage Loans that are Loan Group 1
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 1 Mortgage Loan" means any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Loan Group 1 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 1.
"Loan Group 2" means all of the Mortgage Loans that are Loan Group 2
Mortgage Loans and any successor REO Mortgage Loans with respect thereto.
"Loan Group 2 Mortgage Loan" means any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Loan Group 2 Principal Distribution Amount" means, for any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Mortgage Loans included in Loan Group 2.
"Loan Group Principal Distribution Amount" means the Loan Group 1
Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount,
as applicable.
"Loan-to-Value Ratio" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Principal Balance of such Mortgage Loan at the date of determination and the
denominator of which is the Appraised Value of the Mortgaged Property as shown
on the most recent Appraisal or valuation of the Mortgaged Property which is
available as of such date.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or a Primary Servicer or Sub
Servicer on its behalf) pursuant to which a Lock-Box Account is created.
"Losses" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means: (a) with respect to any Mortgage Loan (other
than an NCB, FSB Loan), any REO Property acquired by the Trust with respect to a
Mortgage Loan (other than an NCB, FSB Loan) and any matters relating to the
foregoing, the General Master Servicer; and (b) with respect to any NCB, FSB
Loan, any REO Property acquired by the Trust with respect to an NCB, FSB Loan
and any matters relating to the foregoing, the NCB Master Servicer.
"Master Servicer Remittance Date" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"Master Servicing Fee" means for each calendar month, as to each
Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan, as to which
there is no Master Servicing Fee payable to the Master Servicers), an amount
equal to the Master Servicing Fee Rate applicable to such month (determined in
the same manner (other than the rate of accrual) as the applicable Mortgage Rate
is determined for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan immediately before the Due Date
occurring in such month, subject to reduction in respect of Compensating
Interest, as set forth in Section 8.10(c). For the avoidance of doubt, Master
Servicing Fees are in addition to Primary Servicing Fees.
"Master Servicing Fee Rate" means, with respect to each Mortgage Loan
(other than the Non-Trust Serviced Pari Passu Loan), the rate per annum
specified as such on the Mortgage Loan Schedule. With respect to the Non-Trust
Serviced Pari Passu Loan, no Master Servicing Fee Rate is charged by the Master
Servicers, but the Pari Passu Loan Servicing Fee Rate is charged pursuant to the
2007-HQ11 Pooling and Servicing Agreement.
"Material Breach" has the meaning set forth in Section 2.3(a).
"Material Document Defect" has the meaning set forth in Section 2.3(a).
"Maturity Date" means, with respect to any Mortgage Loan, as of any
date of determination, the date on which the last payment of principal is due
and payable thereunder, after taking into account all Principal Prepayments
received and any Deficient Valuation, Debt Service Reduction Amount or
modification of the Mortgage Loan occurring prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan or (ii) any grace period permitted by such Mortgage Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"Modification Fee" means a fee, if any, collected in connection with
the modification of a Mortgage Loan.
"Modification Loss" means, with respect to each Mortgage Loan (i) a
decrease in the Principal Balance of such Mortgage Loan, as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the applicable Special Servicer or the applicable Master Servicer and (y) not
recovered from the Mortgagor or (iii) in the case of a modification of such
Mortgage Loan that reduces the Mortgage Rate thereof, the excess, on each Due
Date, of the amount of interest that would have accrued at a rate equal to the
original Mortgage Rate, over interest that actually accrued on such Mortgage
Loan during the preceding Collection Period.
"Money Term" means, with respect to any Mortgage Loan, the Maturity
Date, Mortgage Rate, Principal Balance, amortization term or payment frequency
thereof, or the amount of the scheduled payment thereof, or any provision
thereof requiring the payment of a prepayment premium, yield maintenance payment
or percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"Monthly Certificateholders Report" means a report provided pursuant to
Section 5.4 by the Trustee monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the date of such Distribution Date and of the Record
Date, Interest Accrual Period and Determination Date for such Distribution Date;
(ii) the Available Distribution Amount for the Distribution Date, and any other
cash flows received on the Mortgage Loans and applied to pay fees and expenses
(including the components of the Available Distribution Amount or such other
cash flows); (iii) the aggregate amount of servicing fees, Special Servicing
Fees, other special servicing compensation and Trustee Fees paid to the Master
Servicers, the Special Servicers and the Trustee with respect to the Mortgage
Pool and with respect to each Loan Group and, with respect to the
Non-Trust-Serviced Pari Passu Loan and only to the extent that such information
is provided to the Trustee by another party, the fees paid to the 2007-HQ11
Master Servicer and the 2007-HQ11 Special Servicer; (iv) the amount of other
fees and expenses accrued and paid from the Trust Fund, including without
limitation Advance reimbursement and interest on Advances, and specifying the
purpose of such fees or expenses and the party receiving payment of those
amounts, if applicable; (v) the amount, if any, of such distributions to the
holders of each Class of Principal Balance Certificates applied to reduce the
respective Certificate Balances thereof; (vi) the amount of such distribution to
holders of each Class of Certificates allocable to (A) interest accrued
(including Excess Interest) at the respective Pass-Through Rates, less any Net
Aggregate Prepayment Interest Shortfalls and (B) Prepayment Premiums or Yield
Maintenance Charges; (vii) the amount of any shortfall in principal
distributions and any shortfall in interest distributions to each applicable
Class of Certificates; (viii) the amount of excess cash flow, if any distributed
to the holder of the Residual Certificates; (ix) the Weighted Average REMIC I
Net Mortgage Rate (and interest rates by distributional groups or ranges) of the
Mortgage Loans as of the related Determination Date; (x) the number of
outstanding Mortgage Loans and the aggregate Principal Balance and Scheduled
Principal Balance of the Mortgage Loans at the close of business on such
Determination Date, with respect to the Mortgage Pool and with respect to each
Loan Group; (xi) the number and aggregate Scheduled Principal Balance of
Mortgage Loans, with respect to the Mortgage Pool and with respect to each Loan
Group (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, (D) as to which foreclosure proceedings have been commenced, or (E)
as to which bankruptcy proceedings have been commenced; (xii) the number and
related Principal Balances of any Mortgage Loans modified, extended or waived on
a loan-by-loan basis since the previous Determination Date (including a
description of any modifications, extensions or waivers to mortgage loan terms,
fees, penalties or payments during the distribution period as provided to the
Trustee); (xiii) with respect to any REO Property included in the Trust, the
Principal Balance of the related Mortgage Loan as of the date of acquisition of
the REO Property and the Scheduled Principal Balance thereof; (xiv) as of the
related Determination Date (A) as to any REO Property sold during the related
Collection Period, the date of the related determination by the applicable
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by each Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(xv) the Aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (xvi) the aggregate amount of Principal
Prepayments made during the related Collection Period with respect to the
Mortgage Pool and with respect to each Loan Group; (xvii) the Pass-Through Rate
applicable to each Class of Certificates for such Distribution Date; (xviii) the
amount of Unpaid Interest, Realized Losses or Expense Losses, if any, incurred
with respect to the Mortgage Loans, including a breakout by type of such
Realized Losses or Expense Losses, with respect to the Mortgage Pool and with
respect to each Loan Group; (xix) the aggregate amount of Servicing Advances and
P&I Advances outstanding separately stated that have been made by the applicable
Master Servicer, the applicable Special Servicer and the Trustee, with respect
to the Mortgage Pool and with respect to each Loan Group and the aggregate
amount of servicing advances made by the 2007-HQ11 Master Servicer in respect of
the Non-Trust-Serviced Loan Group (to the extent such information has been
provided to the Trustee by a third party); (xx) the amount of any Appraisal
Reductions effected during the related Collection Period on a loan-by-loan basis
and the total Appraisal Reductions in effect as of such Distribution Date, with
respect to the Mortgage Pool and with respect to each Loan Group (and in the
case of the Non-Trust-Serviced Pari Passu Loan, the amount of any appraisal
reductions effected under the 2007-HQ11 Pooling and Servicing Agreement to the
extent such information has been provided to the Trustee by a third party);
(xxi) any Material Breaches of Mortgage Loan representations and warranties of
which the Trustee, any Master Servicer or any Special Servicer has received
written notice; (xxii) material breaches of any covenants under this Agreement
of which the Trustee, any Master Servicer or any Special Servicer has received
written notice; (xxiii) if applicable to any transaction, information regarding
any tests used for determining early amortization, liquidation or other
performance trigger and whether the trigger was met; and (xxiv) as determined
and/or approved by the Depositor, any other information necessary to satisfy the
requirements of Item 1121(a) of Regulation AB that can, in the Trustee's
reasonable judgment, be included on the Monthly Certificateholders Report
without undue difficulty. In the case of information furnished pursuant to
subclauses (v), (vi) and (xv) above, the amounts shall be expressed in the
aggregate and as a dollar amount per $1,000 of original principal amount of the
Certificates for all Certificates of each applicable Class.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed by an allonge attached thereto or endorsed in blank or endorsed
"Pay to the order of U.S. Bank National Association, as Trustee for Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13, without recourse, representation or warranty" or if the
original Mortgage Note is not included therein, then a lost note affidavit
and indemnity with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed) or certified by a
title insurance company or escrow company to be a true copy thereof;
provided that if such original Mortgage cannot be delivered with evidence of
recording thereon on or prior to the 90th day following the Closing Date
because of a delay caused by the public recording office where such original
Mortgage has been delivered for recordation or because such original
Mortgage has been lost, the Depositor shall deliver or cause to be delivered
to the Trustee a true and correct copy of such Mortgage, together with (A)
in the case of a delay caused by the public recording office, an Officer's
Certificate of the applicable Seller stating that such original Mortgage has
been sent to the appropriate public recording official for recordation or
(B) in the case of an original Mortgage that has been lost after
recordation, a certification by the appropriate county recording office
where such Mortgage is recorded that such copy is a true and complete copy
of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with,
if applicable, evidence of recording thereon (which are reflected in the
Mortgage Loan Schedule), or if such original modification, consolidation and
extension agreements have been delivered to the appropriate recording office
for recordation and either have not yet been returned on or prior to the
90th day following the Closing Date with evidence of recordation thereon or
have been lost after recordation, true copies of such modifications,
consolidations and extensions certified by the applicable Seller together
with (A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Seller stating that such original
modification, consolidation or extension agreement has been dispatched or
sent to the appropriate public recording official for recordation or (B) in
the case of an original modification, consolidation or extension agreement
that has been lost after recordation, a certification by the appropriate
county recording office where such document is recorded that such copy is a
true and complete copy of the original recorded modification, consolidation
or extension agreement, and the originals of all assumption agreements, if
any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording (except for recording information not
yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or
in favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ13" (or, in the case of the Non-Trust-Serviced Pari Passu Loan, in
favor of the 2007-HQ11 Trustee pursuant to the 2007-HQ11 Pooling and
Servicing Agreement); provided that, if the related Mortgage has been
recorded in the name of MERS or its designee, no related Assignment of
Mortgage in favor of the Trustee will be required to be recorded or
delivered and instead, the applicable 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 shall deliver evidence of any such
transfers to the Master Servicers and the Special Servicers, and the Trustee
shall take all actions necessary to confirm that it is shown as, 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;
(v) originals of all intervening assignments of Mortgage, if any, with
evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the
applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening
assignment of Mortgage has not yet been returned on or prior to the 90th day
following the Closing Date from the applicable recording office or has been
lost, a true and correct copy thereof, together with (A) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
applicable Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (B) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that
such copy is a true and complete copy of the original recorded intervening
assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon
or certified by a title insurance company or escrow company to be a true
copy thereof; provided that or, if such Assignment of Leases has not been
returned on or prior to the 90th day following the Closing Date because of a
delay caused by the applicable public recording office where such Assignment
of Leases has been delivered for recordation or because such original
Assignment of Leases has been lost, the Seller shall deliver or cause to be
delivered to the Trustee a true and correct copy of such Assignment of
Leases submitted for recording, together with, (A) in the case of a delay
caused by the public recording office, an Officer's Certificate (as defined
below) of the Seller stating that such Assignment of Leases has been sent to
the appropriate public recording official for recordation or (B) in the case
of an original Assignment of Leases that has been lost after recordation, a
certification by the appropriate county recording office where such
Assignment of Leases is recorded that such copy is a true and complete copy
of the original recorded Assignment of Leases, in each case together with an
original assignment of such Assignment of Leases, in recordable form (except
for recording information not yet available if the instrument being recorded
has not been returned from the applicable recording office), signed by the
holder of record in favor of "U.S. Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13," which assignment may be effected in the
related Assignment of Mortgage (or, in the case of the Non-Trust-Serviced
Pari Passu Loan, in favor of the 2007-HQ11 Trustee pursuant to the 2007-HQ11
Pooling and Servicing Agreement); provided that, if the related Assignment
of Leases has been recorded in the name of MERS or its designee, no
Assignment of Leases or assignment of Assignment of Leases in favor of the
Trustee will be required to be recorded or delivered and instead, the
applicable 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 shall deliver evidence of any such transfers to the Master
Servicers and the Special Servicers, and the Trustee shall take all actions
necessary to confirm that it is shown as, 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 mortgages maintained by MERS;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide
any of the foregoing pursuant to binding escrow instructions executed by the
title company or its authorized agent, with the original Title Insurance
Policy to follow within 180 days of the Closing Date, or a copy of any of
the foregoing certified by the title company with the original Title
Insurance Policy to follow within 180 days of the Closing Date, or a
preliminary title report with the original Title Insurance Policy to follow
within 180 days of the Closing Date;
(ix) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2
or UCC-3 financing statements assigning such UCC financing statements to the
Trustee (or, in the case of the Non-Trust-Serviced Pari Passu Loan, to the
2007-HQ11 Trustee) executed and delivered in connection with the Mortgage
Loan; provided that, if the related Mortgage Loan has been recorded in the
name of MERS or its designee, no UCC, UCC-2 or UCC-3 financing statement in
favor of the Trustee will be required to be recorded or delivered and
instead, the applicable 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 shall
deliver evidence of any such transfers to the Master Servicers and the
Special Servicers, and the Trustee shall take all actions necessary to
confirm that it is shown as, 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 mortgages maintained by MERS;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan (including,
without limitation, the Co-Lender Agreement);
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than
letters of credit representing tenant security deposits which have been
collaterally assigned to the lender), which shall be assigned and delivered
to the Trustee on behalf of the Trust with a copy to be held by the Primary
Servicer (or the Master Servicer), and applied, drawn, reduced or released
in accordance with documents evidencing or securing the applicable Mortgage
Loan, this Agreement and the applicable Primary Servicing Agreement or, (B)
the original of each letter of credit, if any, constituting additional
collateral for such Mortgage Loan (other than letters of credit representing
tenant security deposits which have been collaterally assigned to the
lender), which shall be held by the applicable Primary Servicer (or the
applicable Master Servicer) on behalf of the Trustee and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, this Agreement and the applicable Primary
Servicing Agreement (it being understood that each Seller has agreed (a)
that the proceeds of such letter of credit belong to the Trust, (b) to
notify, on or before the Closing Date, the bank issuing the letter of credit
that the letter of credit and the proceeds thereof belong to the Trust, and
to use reasonable efforts to obtain within 30 days (but in any event to
obtain within 90 days) following the Closing Date, an acknowledgement
thereof by the bank (with a copy of such acknowledgement to be sent to the
Trustee) or a reissued letter of credit and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case
of clause (B) above, each Primary Servicer (and the General Master Servicer)
acknowledges that any letter of credit held by it shall be held in its
capacity as agent of the Trust, and if a Primary Servicer or a Master
Servicer, as applicable, sells its rights to service the applicable Mortgage
Loan, the applicable Primary Servicer or a Master Servicer, as applicable,
will assign the applicable letter of credit to the Trust or at the direction
of the General Special Servicer to such party as such Special Servicer may
instruct, in each case, at the expense of the Primary Servicer or a Master
Servicer, as applicable. The Primary Servicer (or the applicable Master
Servicer) shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
(xiii) the original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(xiv) copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with
a Cut-Off Date Principal Balance equal to or greater than $20,000,000;
(xv) the original of any Environmental Insurance Policy or if the
original is held by the related borrower, a copy thereof;
(xvi) a copy of any affidavit and indemnification agreement in favor of
the lender;
(xvii) with respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents; and
(xviii) with respect to the Non-Trust-Serviced Pari Passu Loan, a copy
of the 2007-HQ11 Pooling and Servicing Agreement.
With respect to the Non-Trust-Serviced Pari Passu Loan, the preceding
document delivery requirements will be met by the delivery by the Depositor of
copies of the documents specified above (other than the Mortgage Note (and all
intervening endorsements) evidencing the Non-Trust-Serviced Pari Passu Loan,
with respect to which the originals shall be required), including a copy of the
related Mortgage.
"Mortgage Loan" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3. Mortgage Loan
shall also include any Defeasance Loan and any REO Mortgage Loan, unless the
context requires otherwise.
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III, Mortgage Loan Purchase Agreement IV and Mortgage Loan Purchase
Agreement V, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of March 1, 2007 with
respect to the MSMC Loans, a form of which is attached hereto as Exhibit K-1.
"Mortgage Loan Purchase Agreement II" means that certain Mortgage Loan
Purchase Agreement between Natixis and the Depositor dated as of March 1, 2007
with respect to the Natixis Loans, a form of which is attached hereto as Exhibit
K-2.
"Mortgage Loan Purchase Agreement III" means that certain Mortgage Loan
Purchase Agreement between SunTrust and the Depositor dated as of March 1, 2007
with respect to the SunTrust Loans, a form of which is attached hereto as
Exhibit K-3.
"Mortgage Loan Purchase Agreement IV" means that certain Mortgage Loan
Purchase Agreement between NCB, FSB and the Depositor dated as of March 1, 2007
with respect to the NCB, FSB Loans, a form of which is attached hereto as
Exhibit K-4.
"Mortgage Loan Schedule" or "Loan Schedule" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMC Loan, the
schedule attached hereto as Schedule II, which identifies each Natixis Loan, the
schedule attached hereto as Schedule III, which identifies each SunTrust Loan,
and the schedule attached hereto as Schedule IV, which identifies each NCB, FSB
Loan, as such schedules may be amended from time to time pursuant to Section
2.3.
"Mortgage Note" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Pool" means all of the Mortgage Loans and any successor REO
Mortgage Loans, collectively.
"Mortgage Rate" means, for a given Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan.
"Mortgaged Property" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan.
"Mortgagee" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSMC" has the meaning assigned in the Preliminary Statement hereto.
"MSMC Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"Natixis" has the meaning assigned in the Preliminary Statement hereto.
"Natixis Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"Natixis Sub-Servicer" means Laureate Capital LLC and CBRE, each in its
capacity as sub-servicer of the Natixis Loans pursuant to each Natixis
Sub-Servicing Agreement.
"Natixis Sub-Servicing Agreement" means each agreement between Laureate
Capital LLC and NorthMarg Capital, Inc., respectively, and the General Master
Servicer, each dated as of March 1, 2007, under which such Natixis Sub-Servicers
service the Natixis Mortgage Loans set forth on the schedule attached thereto.
"NCB Master Servicer's Website" has the meaning set forth in Section
8.14 hereof.
"NCB Master Servicer" means NCB, FSB and its permitted successors or
assigns.
"NCB, FSB Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"NCB, FSB Subordinate Debt Conditions" means, with respect to a
Mortgagor encumbering a Mortgaged Property relating to a Co-op Mortgage Loan
with a subordinate mortgage, the following conditions: (i) each of the loans, or
the sole loan, to be secured by each such subordinate mortgage is made by NCB,
FSB or any Affiliate thereof (ii) each such subordinate mortgage is expressly
subject and subordinate to the lien of the Mortgage encumbering the Mortgaged
Property in question, (iii) each such subordinate mortgage is expressly made in
compliance with the underwriting standards which NCB, FSB customarily employs in
connection with making subordinate mortgages for its own mortgage loan
portfolio, (iv) as of the date of the closing of the subordinate mortgage loan
in question, the New Loan-to-Value Ratio (as defined below) does not exceed 40%,
(v) NCB, FSB or any Affiliate thereof that originates the subordinate mortgage
loan, executes and delivers to the Trustee for inclusion in the Mortgage File a
subordination agreement with respect to such subordinate mortgage in
substantially the form of Exhibit T hereto (provided that the Trustee shall have
no responsibility for determining the sufficiency or validity thereof), (vi) if
the subordinate mortgage loan will not be a fully amortizing loan, the stated
maturity date of the subordinate mortgage loan shall be no earlier than the
maturity date of the related Co-op Mortgage Loan, (vii) the subordinate mortgage
loan shall have interest payable on a current basis, with no deferral, (viii)
the subordinate mortgage loan is made principally for the purpose of funding
capital expenditures, major repairs or reserves at or with respect to the
Mortgaged Property in question and (ix) the aggregate amount of subordinate debt
encumbering the Mortgaged Property in question does not exceed $7,500,000. For
purposes of this definition, and notwithstanding anything herein to the
contrary: "Mortgage Debt" shall mean the sum of (x) the aggregate outstanding
principal balance of all loans secured by one or more mortgages then encumbering
the Mortgaged Property in question (including the related Co-op Mortgage Loan
and any then existing subordinate mortgage loans) and (y) the principal amount
of the proposed new subordinate mortgage loan; "New Loan-to-Value Ratio" shall
mean, as of any date for any Co-op Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Mortgage Debt for the related
Mortgaged Property on such date, and the denominator of which is the Appraised
Value of the related Mortgaged Property; and "Appraised Value" shall be based on
an MAI appraisal of the applicable Mortgaged Property made, in conformance with
NCB, FSB's customary underwriting requirements, not more than one year prior to
the origination date of the related Co-op Mortgage Loan and reviewed by the NCB
Master Servicer.
"NCB, FSB Trust Assets" means the NCB, FSB Loans, any REO Properties
acquired by the Trust with respect to the NCB, FSB Loans and any and all other
related assets of the Trust.
"NCB, FSB" has the meaning assigned in the Preliminary Statement
hereto.
"Net Aggregate Prepayment Interest Shortfall" means, for any
Distribution Date and each Master Servicer, the excess of all Prepayment
Interest Shortfalls incurred in respect of all (or, where specified, a portion)
of the Mortgage Loans serviced by such Master Servicer (including Specially
Serviced Mortgage Loans) during any Collection Period over the sum of (A) the
Compensating Interest to be paid by such Master Servicer (or any Primary
Servicer or Sub-Servicer, if applicable according to the related Primary
Servicing Agreement or Sub-Servicing Agreement) on such Distribution Date and
(B) the aggregate Prepayment Interest Excesses during such Collection Period for
such Master Servicer's Mortgage Loans (including Specially Serviced Mortgage
Loans). Prepayment Interest Shortfalls and Prepayment Interest Excesses will be
separately accounted for by each of the Master Servicers.
"Net Mortgage Rate" means, in general, with respect to any Mortgage
Loan, a per annum rate equal to the related Mortgage Rate (excluding any default
interest or any rate increase occurring after an Anticipated Repayment Date)
minus the related Administrative Cost Rate and minus, with respect to each Co-op
Mortgage Loan, the Class X-Y Strip Rate for such Mortgage Loan; provided that,
for purposes of calculating the Pass-Through Rate for each Class of REMIC
Regular Certificates from time to time, the Net Mortgage Rate for any Mortgage
Loan will be calculated without regard to any modification, waiver or amendment
of the terms of such mortgage loan subsequent to the Closing Date. In addition,
because the Certificates accrue interest on the basis of a 360-day year
consisting of twelve 30-day months, when calculating the Pass-Through Rate for
each Class of Certificates for each Distribution Date, the Net Mortgage Rate on
a Non-30/360 Loan will be the annualized rate at which interest would have to
accrue on the basis of a 360-day year consisting of twelve 30-day months in
order to result in the accrual of the aggregate amount of interest actually
accrued (exclusive of default interest or Excess Interest). However, with
respect to each Non-30/360 Loan: (i) the Net Mortgage Rate that would otherwise
be in effect for purposes of the Scheduled Payment due in January of each year
(other than a leap year) and February of each year (unless such Distribution
Date is the final Distribution Date) will be adjusted to take into account the
applicable Interest Reserve Amount; and (ii) the Net Mortgage Rate that would
otherwise be in effect for purposes of the Scheduled Payment due in March of
each year (commencing in 2007), or February if the related Distribution Date is
the final Distribution Date, will be adjusted to take into account the related
withdrawal from the Interest Reserve Account for the preceding January (if
applicable) and February.
"New Lease" means any lease of any REO Property entered into on behalf
of the Trust, including any lease renewed or extended on behalf of the Trust if
the Trust has the right to renegotiate the terms of such lease.
"Non-Investment Grade Certificates" means each Class of Certificates
other than a Residual Certificate or a Class EI Certificate that, at the time of
determination, is not rated in one of the four highest generic rating categories
by at least Fitch or S&P.
"Non-Registered Certificate" means unless and until registered under
the Securities Act, any Class X, Class X-Y, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class EI or Residual Certificate.
"Nondisqualification Opinion" means a written Opinion of Counsel to the
effect that a contemplated action (i) will neither cause any REMIC Pool to fail
to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust, and
(ii) will not cause the Class EI Grantor Trust to fail to qualify as a grantor
trust.
"Noneconomic Residual Interest" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulations
Section 1.860E-1(c).
"Nonrecoverable Advance" means the portion of any Advance (including
interest accrued thereon at the Advance Rate) or Unliquidated Advance (not
including interest thereon) previously made (or, in the case of an Unliquidated
Advance, not reimbursed to the Trust) or proposed to be made by a Master
Servicer, a Special Servicer or the Trustee that, in its respective sole
discretion, exercised in good faith and, with respect to such Master Servicer
and such Special Servicer, in accordance with the Servicing Standard, will not
be or, in the case of a current delinquency, would not be, ultimately
recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or Purchase Proceeds (or from any other collections) with respect to
the related Mortgage Loan or REO Property, as evidenced by an Officer's
Certificate delivered pursuant to Section 4.4. With respect to each Mortgage
Loan that is cross-collateralized by Mortgaged Properties securing other
Mortgage Loans, all of such Mortgaged Properties and other security must be
considered in connection with any determination of whether an Advance or
Unliquidated Advance is a Nonrecoverable Advance. Such Officer's Certificate
shall be delivered to the Trustee (upon which the Trustee may conclusively rely)
or to the Depositor (if the Trustee is delivering such Officer's Certificate)
and (in either case) to the applicable Special Servicer and the Trustee, in the
time periods as specified in Section 4.4 and shall include the information and
reports set forth in Section 4.4. Absent bad faith, the applicable Master
Servicer's determination as to the nonrecoverability of any Advance shall be
conclusive and binding on the Certificateholders and may, in all cases, be
relied on by the Trustee; provided, however, that the applicable Special
Servicer may, at its option, make a determination in accordance with the
Servicing Standard that any P&I Advance or Servicing Advance, if made, would be
a Nonrecoverable 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 applicable Master Servicer and the Trustee; provided,
however, the applicable Special Servicer shall have no such right to make an
affirmative determination that any P&I Advance is or would be recoverable and,
in the absence of a determination by the applicable Special Servicer that such
Advance is or would be a Nonrecoverable Advance, the decision that a P&I Advance
is recoverable shall remain with the applicable Master Servicer or Trustee, as
applicable. Absent bad faith, such determination by the applicable Special
Servicer shall be conclusive and binding on the Certificateholders, the Master
Servicers and the Trustee. None of the Master Servicers, the Special Servicers
or the Trustee will be obligated to make any Advance that, in its judgment
(except in the case of the Trustee, in accordance with the Servicing Standard),
would not ultimately be recoverable out of collections on the related Mortgage
Loan. Absent bad faith or breach of the servicing standard under the 2007-HQ11
Pooling and Servicing Agreement known to the General Master Servicer or the
Trustee, as applicable, the determination as to the nonrecoverability of any
principal and interest advance made or proposed to be made with respect to the
Non-Trust-Serviced Companion Loan pursuant to the 2007-HQ11 Pooling and
Servicing Agreement, shall be conclusive and binding on the Certificateholders
and may, in all cases, be relied on by the Trustee and the General Master
Servicer unless the Trustee or the General Master Servicer, as the case may be,
has been advised by the 2007-HQ11 Trustee or the 2007-Master Servicer that the
party who made such nonrecoverability determination no longer has the required
rating under the 2007-HQ11 Pooling and Servicing Agreement. In making any
nonrecoverability determination as described above, the relevant party shall be
entitled (i) to consider (among other things) the obligations of the Mortgagor
under the terms of the Mortgage Loan as it may have been modified, (ii) to
consider (among other things) the related Mortgaged Properties in their "as is"
then-current conditions and occupancies and such party's assumptions (consistent
with the Servicing Standard in the case of the applicable Master Servicer or the
applicable Special Servicer) regarding the possibility and effects of future
adverse change with respect to such Mortgaged Properties, (iii) to estimate and
consider, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer (among other things), future
expenses, (iv) to estimate and consider, consistent with the Servicing Standard
in the case of the applicable Master Servicer or the applicable Special Servicer
(among other things), the timing of recovery to such party and (v) to consider
the amount of any deferred Advances outstanding. In addition, the relevant party
may, consistent with the Servicing Standard in the case of the applicable Master
Servicer or the applicable Special Servicer, update or change its
nonrecoverability determinations at any time in accordance with the terms hereof
and may, consistent with the Servicing Standard in the case of the applicable
Master Servicer or the applicable Special Servicer, obtain from the applicable
Special Servicer any analysis, appraisals or other information in the possession
of such Special Servicer for such purposes.
"Non-Trust Serviced Companion Loan" means the RREEF Portfolio Companion
Loan.
"Non-Trust Serviced Loan Group" means, collectively, the RREEF
Portfolio Pari Passu Loan and the REEF Portfolio Companion Loan.
"Non-Trust Serviced Pari Passu Loan" means the RREEF Portfolio Pari
Passu Loan.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination; (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-Y Certificates as a Class, the Class
X-Y Notional Amount as of such date of determination; (iv) with respect to any
Class X-Y Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-Y Notional Amount as of such date of determination;
(v) with respect to any Group X-Y REMIC I Regular Interest, the Principal
Balance of the related Specially Designated Co-op Mortgage Loan (or any
successor REO Mortgage Loan), reduced by any Advances of principal made with
respect to such Specially Designated Co-op Mortgage Loan and losses thereon
previously allocated to Certificateholders; and (vi) with respect to the REMIC
II Regular Interest X-Y, the Class X-Y Notional Amount, which is equal to the
aggregate of the Notional Amounts with respect to all Group X-Y REMIC I Regular
Interests.
"Officer's Certificate" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the applicable Master Servicer(s) and the applicable Special
Servicer(s), any of the officers referred to above or an employee thereof
designated as a Servicing Officer or Special Servicing Officer pursuant to this
Agreement, (x) in the case of the Trustee, a certificate signed by a Responsible
Officer, (y) in the case of a Seller, a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, any Managing Director or Director, the
President, or any Executive Vice President; Senior Vice President, Second Vice
President, Vice President or Assistant Vice President, any Treasurer, any
Assistant Treasurer or any Secretary or Assistant Secretary or any other
authorized signatory and (z) in the case of the Trustee, a certificate signed by
a Responsible Officer, each with specific responsibilities for the matters
contemplated by this Agreement.
"Operating Adviser" shall have the meaning specified in Section
9.37(a).
"Opinion of Counsel" means a written opinion of counsel addressed to
the applicable Master Servicer (and/or any Primary Servicer acting on behalf of
such Master Servicer), the applicable Special Servicer or the Trustee, as
applicable, reasonably acceptable in form and substance to such Master Servicer
(and/or any Primary Servicer acting on behalf of such Master Servicer), such
Special Servicer or the Trustee, as applicable, and who is not in-house counsel
to the party required to deliver such opinion but who, in the good faith
judgment of such Master Servicer (and/or any Primary Servicer acting on behalf
of such Master Servicer), the applicable Special Servicer or the Trustee, as
applicable, is Independent outside counsel knowledgeable of the issues occurring
in the practice of securitization with respect to any such opinion of counsel
concerning the taxation, or status as a REMIC for tax purposes, of any REMIC
Pool or status as a "grantor trust" under the Grantor Trust Provisions of the
Class EI Grantor Trust.
"Option" shall have the meaning specified in Section 9.36(a).
"Option Holder" shall have the meaning specified in Section 9.36(a).
"Option Purchase Price" shall have the meaning specified in Section
9.36(b).
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (net of the related Master Servicing Fees, Excess Servicing Fees,
Primary Servicing Fees and other servicing fees payable from such Scheduled
Payment), other than a Balloon Payment or any default interest, due during the
related Collection Period was not received by the applicable Master Servicer as
of the related Determination Date (subject to Section 5.1(h)), the portion of
such Scheduled Payment not received; (ii) with respect to any Balloon Mortgage
Loan (including any REO Mortgage Loan which provided for a Balloon Payment) as
to which a Balloon Payment was due or deemed due during or prior to the related
Collection Period but was delinquent, in whole or in part, as of the related
Determination Date, an amount equal to the excess, if any, of the Assumed
Scheduled Payment (net of the related Master Servicing Fee, Excess Servicing
Fees, Primary Servicing Fees and other master or primary servicing fees payable
from such Assumed Scheduled Payment) for such Balloon Mortgage Loan for the
related Collection Period, over any Late Collections received in respect of such
Balloon Payment during such Collection Period; and (iii) with respect to each
REO Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the REO Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the applicable
Master Servicer by the applicable Special Servicer, reduced by any amounts
required to be paid as taxes on such REO Income (including taxes imposed
pursuant to Section 860G(c) of the Code); provided, however, that the Scheduled
Payment or Assumed Scheduled Payment for any Mortgage Loan or REO Mortgage Loan
which has been modified shall be calculated based on its terms as modified and
provided, further, that the interest portion amount of any P&I Advance with
respect to a Mortgage Loan as to which there has been an Appraisal Reduction
shall be an amount equal to the product of (i) the amount with respect to
interest required to be advanced without giving effect to this proviso and (ii)
a fraction, the numerator of which is the Scheduled Principal Balance of such
Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction applicable to such Mortgage Loan and the denominator of
which is the Scheduled Principal Balance of such Mortgage Loan as of such
Determination Date.
"P&I Advance Amount" means the amount of the P&I Advance computed for
any Distribution Date.
"Pari Passu Loan Nonrecoverable Advance" means the pro rata portion of
any "Nonrecoverable Advance" (as defined in the 2007-HQ11 Pooling and Servicing
Agreement) allocable to the RREEF Portfolio Pari Passu Loan pursuant to and in
accordance with the 2007-HQ11 Pooling and Servicing Agreement.
"Pari Passu Loan Servicing Fee Rate" means the servicing fee rate
applicable to the Non-Trust Serviced Pari Passu Loan pursuant to the 2007-HQ11
Pooling and Servicing Agreement.
"Participant" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect to any
Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC Regular
Certificates, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter,
the Pass-Through Rates for (i)(A) the Group PB REMIC I Regular Interests shall
equal their respective REMIC I Net Mortgage Rates and (B) the Group X-Y REMIC I
Regular Interests, their respective Class X-Y Strip Rates on the related
Specially Designated Co-op Mortgage Loan for such Distribution Date, (ii)(A) the
REMIC II Regular Interests (other than REMIC II Regular Interest X-Y) shall
equal the Weighted Average REMIC I Net Mortgage Rate and (B) the REMIC II
Regular Interest X-Y shall equal the Weighted Average Class X-Y Strip Rate for
such Distribution Date, (iii) each of the Class A-1, Class A-1A, Class A-2,
Class A-3, Class A-4, Class A-M and Class A-J Certificates shall equal the fixed
rate corresponding to such Class set forth in the Preliminary Statement hereto,
(iv) each of the Class B, Class C, Class D and Class E Certificates shall equal
a per annum rate equal to the fixed rate corresponding to such Class set forth
in the Preliminary Statement hereto subject to a cap equal to the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (v) the Class F,
Class G and Class H shall equal the the Weighted Average REMIC I Net Mortgage
Rate, (vi) each of the Class J, Class K, Class L, Class M, Class N, Class O and
Class P shall equal a per annum rate equal to the fixed rate corresponding to
such Class set forth in the Preliminary Statement hereto, (x) the Class X
Certificates shall equal the per annum rate equal to the weighted average of
Class X Strip Rates for the Components for such Distribution Date (weighted on
the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date), and (xi) the Class X-Y
Certificates shall equal the Weighted Average Class X-Y Strip Rate.
"Paying Agent" means U. S. Bank National Association, and any successor
or assign, as provided herein.
"PCAOB" means the Public Company Accounting Oversight Board.
"Penalty Charges" means the default interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Percentage Interest" means, with respect to each Class of Certificates
other than the Residual Certificates, the fraction of such Class evidenced by
such Certificate, expressed as a percentage (carried to four decimal places and
rounded, if necessary), the numerator of which is the Certificate Balance or
Notional Amount, as applicable, represented by such Certificate determined as of
the Closing Date (as stated on the face of such Certificate) and the denominator
of which is the Aggregate Certificate Balance or Notional Amount, as applicable,
of all of the Certificates of such Class determined as of the Closing Date. With
respect to each Residual Certificate, the percentage interest in distributions
(if any) to be made with respect to the relevant Class, as stated on the face of
such Certificate.
"Performing Party" has the meaning set forth in Section 13.12.
"Permitted Mezzanine Loan Holder": With respect to any mezzanine loan,
the related Seller or any other holder of a mezzanine loan with respect to which
each Rating Agency has confirmed in writing to the applicable Special Servicer
and the Trustee that the holding of such mezzanine loan by such Person would not
cause a qualification, downgrade or withdrawal of any of such Rating Agency's
then-current ratings on the Certificates.
"Permitted Transferee" means any Transferee other than (i) a
Disqualified Organization, (ii) a United States Tax Person with respect to whom
income from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Tax Person or (iii) a United
States Tax Person treated as a partnership for federal income tax purposes, any
partner of which, directly or indirectly (except through a U.S. corporation), is
not (and is not required to be under the related partnership agreement) a United
States Tax Person.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Report" means a report by an Independent Person
who regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has a reasonable amount of experience conducting such assessments.
"Placement Agent" means Xxxxxx Xxxxxxx & Co. Incorporated or its
successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"Preliminary Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Prepayment Interest Excess" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
of a Mortgage Loan (including any payment of an unscheduled Balloon Payment) is
made on or after the Due Date for such Mortgage Loan through and including the
last day of the Collection Period (or, with respect to those Mortgage Loans
listed on Schedule XIII, through and including the first Business Day prior to
the Master Servicer Remittance Date), the amount of interest that accrues on the
amount of such Principal Prepayment or Balloon Payment from such Due Date to the
date such payment was made, plus (if made) any payment by the related Mortgagor
of interest that would have accrued to the next succeeding Due Date (net of the
amount of any Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, any servicing fee payable in connection with the Non-Trust
Serviced Pari Passu Loan (if applicable), the Special Servicing Fee and the
Trustee Fee in each case, to the extent payable out of such collection of
interest), to the extent collected.
"Prepayment Interest Shortfall" means, with respect to any Distribution
Date, a shortfall in the collection of a full month's interest on any Mortgage
Loan, by reason of a full or partial Principal Prepayment (including any payment
of an unscheduled Balloon Payment) made during any Collection Period prior to
the Due Date for such Mortgage Loan in such Collection Period (including any
shortfall resulting from a payment during the grace period relating to such Due
Date). The amount of any Prepayment Interest Shortfall shall equal the excess of
(A) the aggregate amount of interest which would have accrued at the REMIC I Net
Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan for the
30 days ending on such Due Date if such Principal Prepayment or Balloon Payment
had not been made (net of the Master Servicing Fee, the Primary Servicing Fees,
the Excess Servicing Fees, any servicing fee payable in connection with the
Non-Trust Serviced Pari Passu Loan (if applicable), the Special Servicing Fee
and the Trustee Fee), plus, with respect to each Specially Designated Co-op
Mortgage Loan, the related Class X-Y Strip Rate over (B) the aggregate interest
that did so accrue at the REMIC I Net Mortgage Rate plus, with respect to each
Specially Designated Co-op Mortgage Loan, the related Class X-Y Strip Rate,
through the date such payment was made.
"Prepayment Premium" means, with respect to any Mortgage Loan for any
Distribution Date, the prepayment premiums or percentage premiums, if any,
received during a related Collection Period in connection with Principal
Prepayments on such Mortgage Loan.
"Primary Collateral" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"Primary Servicers" means SunTrust Bank and its permitted successors
and assigns.
"Primary Servicing Agreement" means the agreement between the Primary
Servicer and the General Master Servicer, dated as of March 1, 2007, under which
the Primary Servicer services the Mortgage Loans set forth on the schedule
attached thereto.
"Primary Servicing Fee" means, for each calendar month, as to each
Mortgage Loan for which a Primary Servicing Fee is payable pursuant to this
Agreement, the Primary Servicing Fee Rate multiplied by the Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and
payable only from collections on such Mortgage Loan.
"Primary Servicing Fee Rate" means, the rate per annum at which the
monthly Primary Servicing Fee payable to the applicable Primary Servicer (or the
applicable Master Servicer, as applicable) accrues, which rate is the per annum
rate specified on the Mortgage Loan Schedule, as more specifically described, in
the case of the Primary Servicers, in the applicable Primary Servicing Agreement
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan for such month).
"Principal Balance" means, with respect to any Mortgage Loan or any REO
Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan or the related
REO Mortgage Loan outstanding as of the Cut-Off Date after taking into account
all principal and interest payments made or due prior to the Cut-Off Date
(assuming, for any Mortgage Loan with a Cut-Off Date in March 2007 that is not
March 1, 2007, that principal and interest payments for such month were paid on
March 1, 2007), reduced (to not less than zero) by (i) any payments or other
collections of amounts allocable to principal on such Mortgage Loan or any
related REO Mortgage Loan that have been collected or received during any
preceding Collection Period, other than any Scheduled Payments due in any
subsequent Collection Period, and (ii) any Realized Principal Loss incurred in
respect of such Mortgage Loan or related REO Mortgage Loan, in each case, during
any related and preceding Collection Period.
"Principal Balance Certificates" means, collectively, the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates.
"Principal Distribution Amount" means, on any Distribution Date, the
amount equal to the excess, if any, of (I) the sum of:
(A) the aggregate (without duplication) of the following amounts
received with respect to the Mortgage Loans: (i) the principal portion of
all Scheduled Payments (other than the principal portion of Balloon
Payments) and any Assumed Scheduled Payments, in each case, to the extent
received or advanced, as the case may be, in respect of the Mortgage Loans
and any REO Mortgage Loans for their respective Due Dates occurring during
the related Collection Period; and (ii) all payments (including Principal
Prepayments and the principal portion of Balloon Payments) and any other
collections (including Liquidation Proceeds (other than the portion thereof,
if any, constituting Excess Liquidation Proceeds), Condemnation Proceeds,
Insurance Proceeds, Purchase Proceeds and REO Income) received on or in
respect of the Mortgage Loans during the related Collection Period that were
identified and applied by the Master Servicer as recoveries of principal
thereof;
(B) the aggregate amount of any collections received on or in respect of
the Mortgage Loans that represents a delinquent amount as to which an
Advance had been made, which Advance or interest thereon was previously
reimbursed during the Collection Period for a prior Distribution Date as
part of a Workout-Delayed Reimbursement Amount for which a deduction was
made under clause (II)(A) below with respect to such Distribution Date (with
respect to each such Mortgage Loan, allocated first to the Loan Group
Principal Distribution Amount related to the Loan Group that does not
include such Mortgage Loan, and then to the Loan Group Principal
Distribution Amount related to the Loan Group that includes such Mortgage
Loan); and
(C) the aggregate amount of any collections identified and applied by
the applicable Master Servicer as recoveries of principal and received on or
in respect of the Mortgage Loans during the related Collection Period that,
in each case, represents a recovery of an amount previously determined (in a
Collection Period for a prior Distribution Date) to have been a
Nonrecoverable Advance and for which a deduction was made under clause
(II)(B) below with respect to a prior Distribution Date (with respect to
each such Mortgage Loan, allocated first to the Loan Group Principal
Distribution Amount related to the Loan Group that does not include such
Mortgage Loan, and then to the Loan Group Principal Distribution Amount
related to the Loan Group that includes such Mortgage Loan), and which are
applied pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and
Advance Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the applicable Master Servicer, the
applicable Special Servicer and the Trustee from principal collections on
the Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances that was reimbursed
or paid during the related Collection Period to one or more of the Master
Servicer, the applicable Special Servicer and the Trustee during the related
Collection Period from principal collections on the Mortgage Loans pursuant
to subsection (iv) of Section 5.2(a)(II).
For purposes of the definition of "Principal Distribution Amount," the
Scheduled Payments and Principal Prepayments referred to in the proviso in
Section 5.2(b) shall be deemed to have been collected in the prior Collection
Period.
"Principal Prepayment" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan which is received or recovered in
advance of its scheduled Due Date and applied to reduce the Principal Balance of
the Mortgage Loan in advance of its scheduled Due Date, including, without
limitation, all proceeds, to the extent allocable to principal, received from
the payment of cash in connection with a substitution shortfall pursuant to
Section 2.3; provided that the pledge by a Mortgagor of Defeasance Collateral
with respect to a Defeasance Loan shall not be deemed to be a Principal
Prepayment.
"Private Placement Memorandum" means the Private Placement Memorandum
dated March 22, 2007, pursuant to which the Class X, Class X-Y, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O and Class P Certificates will be offered for sale.
"Prohibited Party": A party that is a proposed Servicing Function
Participant that a Master Servicer, a Special Servicer or the Trustee, as
applicable, seeks to retain as a Servicing Function Participant and as to which
the Master Servicers, the Special Servicers or the Trustee, as applicable, has
actual knowledge that such proposed party on any prior date failed to comply
with its Exchange Act or Regulation AB obligations with respect to the Subject
Securitization Transaction or any other commercial mortgage securitization. In
addition, a Prohibited Party shall be any Person identified in writing
(delivered prior to the date of retention) by the Depositor to the Master
Servicers, the Special Servicers or the Trustee, as applicable, that seeks to
retain such Person as a Person which the Depositor has knowledge that such party
on any prior date failed to comply with its Exchange Act or Regulation AB
obligations with respect to the Subject Securitization Transaction or any other
commercial mortgage securitization.
"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, as set forth in the Appraisal obtained with
respect to such Mortgaged Property in connection with the origination of the
related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming
such Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market rate vacancy assumption and
projected reserves.
"Prospectus" has the meaning set forth in the Preliminary Statement
hereto.
"PTCE" has the meaning set forth in Section 3.3(d).
"Purchase Price" means, with respect to (i) the repurchase, pursuant to
Article II of this Agreement, by the applicable Seller of a Mortgage Loan sold
by such Seller, (ii) the determination of fair value of an REO Mortgage Loan
with respect to a liquidation by the Special Servicer pursuant to Section 9.15
or (iii) the determination of fair value of a Mortgage Loan in connection with a
purchase by the Option Holder pursuant to Section 9.36 under the circumstances
described therein, a price equal to the sum of (A) 100% of the unpaid Principal
Balance of such Mortgage Loan (or, deemed Principal Balance, in the case of an
REO Mortgage Loan), plus (B) accrued but unpaid interest thereon calculated at
the Mortgage Rate to and including, the Due Date in the Collection Period in
which such purchase or liquidation occurs, plus (C) the amount of any expenses
related to such Mortgage Loan or the related REO Property (including any
Servicing Advances and Advance Interest (which have not been paid by the
Mortgagor or out of Late Fees or default interest paid by the related Mortgagor
on the related Mortgage Loan) and all unpaid Special Servicing Fees and
Liquidation Fees paid or payable with respect to the Mortgage Loan that are
reimbursable or payable to the applicable Master Servicer, the applicable
Special Servicer, the Trustee, the 2007-HQ11 Master Servicer, the 2007-HQ11
Special Servicer or the 2007-HQ11 Trustee, plus (D) if such Mortgage Loan or REO
Mortgage Loan is being repurchased or substituted for by a Seller pursuant to
the related Mortgage Loan Purchase Agreement, all expenses reasonably incurred
or to be incurred by the Primary Servicer, the applicable Master Servicer, the
applicable Special Servicer, the Depositor or the Trustee in respect of the
Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"Purchase Proceeds" means any cash amounts received by the applicable
Master Servicer in connection with: (i) the repurchase of a Mortgage Loan or an
REO Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the purchase by the
Option Holder of a Mortgage Loan pursuant to Section 9.36; (iii) the purchase of
the Mortgage Loans and REO Properties by the Depositor, the applicable Master
Servicer, the applicable Special Servicer or the holders of the Class R-I
Certificates pursuant to Section 10.1(b); or (iv) if applicable, the purchase of
a Mortgage Loan by a holder of a mezzanine loan under the related mezzanine
intercreditor agreement.
"Qualified Bidder" means as used in section 8.29(c), a Person qualified
to act as successor Master Servicer hereunder pursuant to Section 8.22(b)
(including the requirement set forth in Section 8.22(b) that Rating Agency
Confirmation shall have been obtained from each Rating Agency with respect to
such Person).
"Qualified Institutional Buyer" means a qualified institutional buyer
qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan, an
insurance company duly qualified as such under the laws of the state in which
the related Mortgaged Property is located, duly authorized and licensed in such
state to transact the applicable insurance business and to write the insurance,
but in no event rated lower than "A" by Fitch, or if not so rated by Fitch, then
Fitch has issued a Rating Agency Confirmation, and "A" by S&P, or if not so
rated by S&P, then S&P has issued a Rating Agency Confirmation, and (ii) with
respect to the Servicer Errors and Omissions Insurance Policy or Servicer
Fidelity Bond an insurance company that has a claim paying ability no lower than
"A" by S&P if rated by S&P, or if not so rated by S&P, then A:IX by A. M. Best
or S&P has issued a Rating Agency Confirmation and "A" by Fitch (or if such
company is not rated by Fitch, is rated at least A:IX by A.M. Best's Key Rating
Guide) or (iii) in either case, a company not satisfying clause (i) or (ii) but
with respect to which Rating Agency Confirmation is obtained from Fitch and S&P.
"Qualified Insurer" shall also mean any entity that satisfies all of the
criteria, other than the ratings criteria, set forth in one of the foregoing
clauses and whose obligations under the related insurance policy are guaranteed
or backed by an entity that satisfies the ratings criteria set forth in such
clause (construed as if such entity were an insurance company referred to
therein).
"Qualifying Substitute Mortgage Loan" means, in the case of a Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date
of substitution, (i) has an outstanding principal balance, after deduction of
the principal portion of the Scheduled Payment due in the month of substitution,
not in excess of the Principal Balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the Principal Balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the applicable Master
Servicer for deposit into the applicable Certificate Account, and shall be
treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a
remaining term to stated maturity not greater than, and not more than two years
less than, that of the Deleted Mortgage Loan; (iv) has (A) an original
Loan-to-Value Ratio not higher than the lesser of (x) the current Loan-to-Value
Ratio of the Deleted Mortgage Loan and (y) 75.0% and (B) has a current Debt
Service Coverage Ratio equal to the greater of (x) the current Debt Service
Coverage Ratio of the Deleted Mortgage Loan and (y) 1.25x; (v) will comply with
all of the representations and warranties relating to Mortgage Loans set forth
herein, as of the date of substitution; (vi) has a Phase I Environmental Report
relating to the related Mortgaged Property in the related Mortgage File and such
Phase I Environmental Report does not, in the good faith reasonable judgment of
the applicable Special Servicer, exercised in a manner consistent with the
Servicing Standard, raise material issues that have not been adequately
addressed; (vii) has an engineering report relating to the related Mortgaged
Property in its Mortgage Files and such engineering report does not, in the good
faith reasonable judgment of the Special Servicer, exercised in a manner
consistent with the Servicing Standard, raise material issues that have not been
adequately addressed; (viii) is secured by a residential cooperative property if
the Mortgage Loan substituted for a Deleted Mortgage Loan is a Co-op Mortgage
Loan; and (ix) as to which the Trustee has received an Opinion of Counsel, at
the related Seller's expense, that such Mortgage Loan is a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code;
provided that no Mortgage Loan may have a Maturity Date after the date three
years prior to the Final Rated Distribution Date, and provided, further, that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless
Rating Agency Confirmation is obtained, and provided, further, that no such
Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the
Operating Adviser shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (i) above and the remaining
term to stated maturity referred to in clause (ii) above shall be determined on
a weighted average basis; provided, however, that no individual interest rate,
minus the Administrative Cost Rate, shall be lower than the highest Pass-Through
Rate of any Class of Principal Balance Certificates then outstanding having a
fixed rate. Whenever a Qualifying Substitute Mortgage Loan is substituted for a
Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify that such Mortgage Loan meets all of the requirements
of this definition and shall send such certification to the Trustee, which shall
deliver a copy of such certification to the Master Servicers, the Special
Servicers, the Trustee and the Operating Adviser promptly, and in any event
within five Business Days following the Trustee's receipt of such certification.
"Rating Agencies" means Fitch and S&P.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"Realized Interest Loss" means, with respect to each Mortgage Loan (i)
in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses set forth in the last sentence
of the definition of "Realized Principal Loss" or (iv) in the case of a
Modification Loss, a Modification Loss described in clause (iii) of the
definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a Modification Loss,
a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan. Realized
Losses on a Mortgage Loan are allocated first to the Principal Balance of, and
then to interest on such Mortgage Loan.
"Realized Principal Loss" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, the portion thereof not treated as a Realized Interest Loss and
(v) the amounts in respect thereof that are withdrawn from the Certificate
Account pursuant to Section 6.6(b)(i). Notwithstanding clause (iv) of the
preceding sentence, to the extent that Expense Losses (exclusive of Expense
Losses resulting from payment of the Special Servicing Fee) exceed amounts with
respect to a Mortgage Loan that were identified as allocable to principal, such
excess shall be treated as a Realized Interest Loss.
"Record Date" means, for each Distribution Date, with respect to each
Class of Certificates, the close of business on the last Business Day of the
month immediately preceding the month in which such Distribution Date occurs.
"Recoveries" means, as of any Distribution Date, any amounts recovered
with respect to a Mortgage Loan or REO Property following the period in which a
Final Recovery Determination occurs plus other amounts defined as "Recoveries"
herein.
"Regulation AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation S" means Regulation S under the 1933 Act.
"Regulation S Certificate" means a written certification substantially
in the form set forth in Exhibit F hereto certifying that a beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a U.S. Person
(as defined in Regulation S).
"Regulation S Global Certificates" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"Regulation S Permanent Global Certificate" means any single permanent
global Certificate, in definitive, fully registered form without interest
coupons received in exchange for a Regulation S Temporary Global Certificate.
"Regulation S Temporary Global Certificate" means, with respect to any
Class of Certificates offered and sold outside of the United States in reliance
on Regulation S, a single temporary global Certificate, in definitive, fully
registered form without interest coupons.
"Rehabilitated Mortgage Loan" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan that was modified, based on the
modified terms), or a complete defeasance shall have occurred, (ii) no other
Servicing Transfer Event has occurred and is continuing (or with respect to
determining whether a Required Appraisal Loan is a Rehabilitated Mortgage Loan
for applying Appraisal Reductions, no other Appraisal Event has occurred and is
continuing) and (iii) one of the following statements is true with respect to
any cost incurred as a result of the occurrence of the Servicing Transfer Event:
(a) the cost has been reimbursed to the Trust, (b) the Mortgagor's obligation to
pay the cost has been forgiven, (c) the Mortgagor has agreed in writing to
reimburse such costs or (d) the cost represents an amount that has been the
subject of an Advance made with respect to the Mortgage Loan following default,
the mortgage loan has been worked out under terms that do not provide for the
repayment of such Advance in full upon the execution of the workout arrangement
but the Mortgagor is nonetheless obligated under the terms of the workout
arrangement to reimburse such Advance in the future.
"Release Date" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria" means the Servicing Criteria applicable
to each Reporting Servicer (as set forth, with respect to the Master Servicers,
the Special Servicers, any Primary Servicer and the Trustee, on Schedule XVI
attached hereto). For clarification purposes, multiple Reporting Servicers can
have responsibility for the same Relevant Servicing Criteria and some of the
Servicing Criteria will not be applicable to certain Reporting Servicers. With
respect to a Servicing Function Participant engaged by the Trustee, the Master
Servicers, the Special Servicers, any Primary Servicer or any Reporting
Sub-Servicer, the term "Relevant Servicing Criteria" may refer to a portion of
the Relevant Servicing Criteria applicable to the Trustee, the Master Servicers,
the Special Servicers, any Primary Servicer or such Reporting Sub-Servicer.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
related thereto as shall from time to time be held in the Certificate Accounts,
the Interest Reserve Accounts, the Reserve Account and the Distribution Account
(other than the portion thereof constituting Excess Interest Sub-account or
funds held with respect to REMIC II or REMIC III), the related Insurance
Policies and any related REO Properties, for which a REMIC election has been
made pursuant to Section 12.1(a) hereof. The Non-Trust Serviced Companion Loan
or any amounts payable thereon shall not constitute an asset of the Trust or any
REMIC Pool formed hereunder.
"REMIC I Interests" means, collectively, the REMIC I Regular Interests
and the Class R-I Certificates.
"REMIC I Net Mortgage Rate" means, with respect to any Distribution
Date and any REMIC I Regular Interest, a rate per annum equal to the Adjusted
Mortgage Rate for the related Mortgage Loan for such Distribution Date (based on
the Mortgage Rate thereof (without taking into account any increase therein
after the Anticipated Repayment Date in respect of an ARD Loan or any default
interest rate), as of the Cut-Off Date and without regard to any modification,
waiver or amendment of the terms thereof following the Cut-Off Date) minus, with
respect to each Specially Designated Co-op Mortgage Loan, the Class X-Y Strip
Rate.
"REMIC I Regular Interests" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to (i) each Mortgage Loan (other than a Specially Designated Co-op
Mortgage Loan), an interest having an initial Certificate Balance equal to the
Cut-Off Date Scheduled Principal Balance of such Mortgage Loan, and which has a
Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Mortgage Loan
and (ii) with respect to each Specially Designated Co-op Mortgage Loan, one
interest having an initial Certificate Balance equal to the Cut-Off Date
Scheduled Principal Balance of such Specially Designated Co-op Mortgage Loan,
and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such
Specially Designated Co-op Mortgage Loan and one interest having an initial
Notional Amount equal to the Cut-Off Date Scheduled Principal Balance of such
Specially Designated Co-op Mortgage Loan, and which has a Pass-Through Rate
equal to the Class X-Y Strip Rate of such Specially Designated Co-op Mortgage
Loan.
"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests and related amounts in the Distribution Account for which a
REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II Regular Interest A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-1A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having initial Certificate Balance as set forth in the Preliminary
Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC
I Net Mortgage Rate.
"REMIC II Regular Interest X-Y" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial notional amount equal to the initial Class X-Y
Notional Amount, and which has a Pass-Through Rate equal to the Weighted Average
Class X-Y Strip Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-1A, REMIC II Regular Interest A-2,
REMIC II Regular Interest A-3, REMIC II Regular Interest A-4, REMIC II Regular
Interest A-M, REMIC II Regular Interest A-J, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N,
REMIC II Regular Interest O, REMIC II Regular Interest P and REMIC II Regular
Interest X-Y.
"REMIC III" means the segregated pool of assets consisting of the REMIC
II Regular Interests and related amounts in the Distribution Account for which a
REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC III Certificates" has the meaning set forth in the Preliminary
Statement hereto.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(b) hereof.
"REMIC Provisions" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class X, Class X-Y,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates.
"Rent Loss Policy" means a policy of insurance generally insuring
against loss of income or rent resulting from hazards or acts of God.
"Rents from Real Property" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO Account" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO Disposition" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO Income" means, with respect to any REO Property, except as set
forth below, all income received in connection with such REO Property during
such period less any operating expenses, utilities, real estate taxes,
management fees, insurance premiums, expenses for maintenance and repairs and
any other capital expenses directly related to such REO Property paid during
such period. With respect to the Non-Trust Serviced Loan Group (if the 2007-HQ11
Special Servicer has foreclosed upon the mortgaged properties securing the
Non-Trust Serviced Pari Passu Loan), the REO Income includes only the portion of
such net income that is paid to the holder of the Non-Trust Serviced Pari Passu
Loan pursuant to the 2007-HQ11 Pooling and Servicing Agreement.
"REO Mortgage Loan" means a Mortgage Loan, as to which the related
Mortgaged Property is an REO Property.
"REO Property" means a Mortgaged Property (or the Trust's interest
therein, if the Mortgaged Property securing a Loan Group has been acquired by
the Trust) acquired by the Trust through foreclosure, deed-in-lieu of
foreclosure, abandonment or reclamation from bankruptcy in connection with a
Defaulted Mortgage Loan or otherwise treated as foreclosure property under the
REMIC Provisions.
"Report Date" means the close of business on the third Business Day
before the related Distribution Date.
"Reporting Servicer" means the Master Servicers, the Special Servicers,
any Primary Servicer, each Reporting Sub-Servicer, the Trustee and any
Additional Servicer, as the case may be.
"Reporting Sub-Servicer" means any Person that (i) is a Servicing
Function Participant, (ii) Services the assets of the Trust on behalf of (a) the
Trust, (b) the Trustee, (c) the Master Servicers, (d) the Special Servicers, (e)
any Additional Servicer or (f) any other Person that otherwise constitutes a
"Sub-Servicer," and (iii) is responsible for the performance (whether directly
or through sub-servicers or Subcontractors) of Servicing functions that are
required to be performed by the Trustee, the Master Servicers, the Special
Servicers or any Additional Servicer under this Agreement or any sub-servicing
agreement and are identified in Item 1122(d) of Regulation AB. For clarification
purposes, any Primary Servicer is a Reporting Sub-Servicer.
"Repurchased Loan" has the meaning set forth in Section 2.3(a) hereof.
"Request for Release" means a request for release of certain documents
relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan (other than the
Non-Trust Serviced Pari Passu Loan) as to which an Appraisal Event has occurred.
A Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan) will cease
to be a Required Appraisal Loan at such time as it is a Rehabilitated Mortgage
Loan.
"Reserve Account" shall mean the Reserve Account maintained by the
Trustee in accordance with the provisions of Section 5.3, which shall be an
Eligible Account, which may be a sub-account of the Distribution Account.
"Residual Certificates" means, with respect to REMIC I, the Class R-I
Certificates; with respect to REMIC II, the Class R-II Certificates; and with
respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the initial
Trustee, any officer of the Trustee with specific responsibilities for the
matters contemplated by this Agreement and when used with respect to any
successor Trustee, any Vice President, Assistant Vice President, corporate trust
officer or any assistant corporate trust officer or Persons performing similar
roles on behalf of the Trustee.
"Restricted Servicer Reports" means, collectively, to the extent not
filed with the Commission, the CMSA Servicer Watch List, the CMSA Operating
Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA Financial
File and the CMSA Comparative Financial Status Report.
"Reverse Sequential Order" means sequentially to the Class P, Class O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B, Class A-J, Class A-M, and finally to the Class X,
Class X-Y, Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4
Certificates on a pro rata basis, as described herein.
"RREEF Portfolio Co-Lender Agreement" means the intercreditor agreement
between the holder of the RREEF Portfolio Pari Passu Loan and the holders of the
RREEF Portfolio Companion Loan.
"RREEF Portfolio Companion Loan" means, collectively, the four notes
that are secured by the RREEF Portfolio Pari Passu Mortgage on a pari passu
basis with the RREEF Portfolio Pari Passu Loan. The RREEF Portfolio Companion
Loan is not a "Mortgage Loan."
"RREEF Portfolio Loan Group" means, collectively, the RREEF Portfolio
Pari Passu Loan, the RREEF Portfolio Companion Loan and the RREEF Portfolio A-6
Companion Loan (as applicable).
"RREEF Portfolio Pari Passu Loan" means Mortgage Loan No. 2 on the
Mortgage Loan Schedule.
"RREEF Portfolio Pari Passu Mortgage" means the mortgage securing the
RREEF Portfolio Pari Passu Loan and the RREEF Portfolio Companion Loan.
"Rule 144A" means Rule 144A under the 1933 Act.
"Rule 144A IAI Global Certificate" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"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" has the meaning set forth in Section
13.6.
"Scheduled Payment" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan required to be paid on its Due Date by the
Mortgagor in accordance with the terms of the related Mortgage Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
"Scheduled Principal Balance" means, with respect to any Mortgage Loan
or any REO Mortgage Loan, for purposes of performing calculations with respect
to any Distribution Date, the Principal Balance thereof minus the aggregate
amount of any P&I Advances of principal previously made with respect to such
Mortgage Loan or such REO Mortgage Loan.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Seller" means MSMC, Natixis, NCB, FSB or SunTrust, as the case may be.
"Seller Sub-Servicer": A Sub-Servicer or Additional Servicer required
to be retained by a Master Servicer or Special Servicer, as applicable, by a
Seller, as listed on Schedule XX hereto.
"Service(s)(ing)" means, 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.
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance policy
maintained by each Master Servicer, each Special Servicer or the Trustee, as the
case may be, in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or insurance
policy under which the insurer agrees to indemnify each Master Servicer, each
Special Servicer or the Trustee, as the case may be, (subject to standard
exclusions) for all losses (less any deductible) sustained as a result of any
theft, embezzlement, fraud or other dishonest act on the part of a Master
Servicer's, a Special Servicer's or the Trustee's, as the case may be, officers
or employees and is maintained in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"Servicer Mortgage File" means (i) with respect to all Mortgage Loans
other than the MSMC Loans, copies of the mortgage documents listed in the
definition of Mortgage File relating to a Mortgage Loan, and (ii) with respect
to the MSMC Loans, copies of the mortgage documents listed in the definition of
Mortgage File relating to a Mortgage Loan and, to the extent required to be (and
actually) delivered to the General Master Servicer by the applicable Seller
pursuant to the applicable Mortgage Loan Purchase Agreement, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"Servicing Advance" means any cost or expense of the Master Servicers,
the Special Servicers or the Trustee, as the case may be, designated as a
Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by or for such Master Servicer, such Special Servicer or the Trustee,
as the case may be, to protect and preserve the security for a Mortgage Loan
(other than the Non-Trust Serviced Pari Passu Loan).
"Servicing Criteria" means the criteria set forth in paragraph (d) of
Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Function Participant" means any Person, other than the
Master Servicers, the Special Servicers and the Trustee that, within the meaning
of Item 1122 of Regulation AB, is performing activities addressed by the
Servicing Criteria, unless such Person's activities relate only to 5% or less of
the Mortgage Loans (based on their Principal Balance). For clarification
purposes, each Primary Servicer is a Servicing Function Participant.
"Servicing Officer" means, any officer or employee of the Master
Servicers or Special Servicers involved in, or responsible for, the
administration and servicing of the Mortgage 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 Servicers or the Special Servicers, as applicable, as such
list may from time to time be amended.
"Servicing Standard" means the standard by which the Master Servicers
and Special Servicers will service and administer the Mortgage Loans and/or REO
Properties that it is obligated to service and administer pursuant to this
Agreement in the best interests and for the benefit of the Certificateholders as
a collective whole (and as determined by the applicable Master Servicer or the
applicable Special Servicer, as applicable, in its good faith and reasonable
judgment), to perform such servicing and administration in accordance with
applicable law, the terms of this Agreement, and the terms of the respective
subject Mortgage Loans and, to the extent consistent with the foregoing, further
as follows:
(i) with the same skill, care and diligence as is normal and usual in
its mortgage servicing activities on behalf of third parties or on behalf of
itself, whichever is higher, and in the case of a Special Servicer, its REO
Property management activities on behalf of third parties or on behalf of
itself, whichever is higher, with respect to mortgage loans that are
comparable to the Mortgage Loans; and
(ii) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and, in the case of a
Special Servicer, if a serviced Mortgage Loan comes into and continues in
default, and if, in the judgment of such Special Servicer, no satisfactory
arrangements can be made for the collection of the delinquent payments, the
maximization of the recovery of principal and interest on that Mortgage Loan
to the Certificateholders, as a collective whole, on a net present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders will be performed at the rate determined
by the Special Servicer but in any event not less than the related REMIC I
Net Mortgage Rate (plus, with respect to a Specially Designated Co-op
Mortgage Loan, the Class X-Y Strip Rate), in the case of the Mortgage Loans;
but without regard to: (I) any relationship that a Master Servicer or Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor; (II) the ownership of any Certificate by a Master Servicer or Special
Servicer, as the case may be, or any Affiliate thereof; (III) a Master
Servicer's obligation to make P&I Advances or Servicing Advances; (IV) a Special
Servicer's obligation to request that a Master Servicer make Servicing Advances;
(V) the right of a Master Servicer (or any Affiliate thereof) or Special
Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it
under this Agreement or with respect to any particular transaction; and (VI)
except with respect to the General Master Servicer, any obligation of the NCB
Master Servicer or any of its Affiliates (in their capacity as a Seller) to cure
a breach of a representation or warranty or repurchase any Mortgage Loan.
"Servicing Transfer Event" means the occurrence of any of the following
events: (i) a payment default shall have occurred on a Mortgage Loan (other than
the Non-Trust Serviced Pari Passu Loan) (x) at its Maturity Date (except, with
respect to the NCB, FSB Loans, if (a) the Borrower is making its regularly
scheduled monthly payments, (b) the Borrower notifies the applicable Master
Servicer (who shall forward such notice to the other Master Servicer, the
applicable Special Servicer and the Operating Adviser) of its intent to
refinance such Mortgage Loan and is diligently pursuing such refinancing, (c)
the Borrower delivers a firm commitment to refinance acceptable to the Operating
Adviser on or prior to the Maturity Date, and (d) such refinancing occurs within
60 days of such default, which 60-day period may be extended to 120 days at the
Operating Adviser's discretion) or (y) if any other payment is more than 60 days
past due or has not been made on or before the second Due Date following the
date such payment was due; (ii) any Mortgage Loan (other than the Non-Trust
Serviced Pari Passu Loan) as to which, to the applicable Master Servicer's or
applicable Special Servicer's knowledge, the Mortgagor has consented to the
appointment of a receiver or conservator in any insolvency or similar proceeding
of, or relating to, such Mortgagor or to all or substantially all of its
property, or the Mortgagor has become the subject of a decree or order issued
under a bankruptcy, insolvency or similar law and such decree or order shall
have remained undischarged, undismissed or unstayed for a period of 30 days;
(iii) any Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan) as
to which the applicable Master Servicer or applicable Special Servicer shall
have received notice of the foreclosure or proposed foreclosure of any other
lien on the Mortgaged Property; (iv) any Mortgage Loan (other than the Non-Trust
Serviced Pari Passu Loan) as to which the applicable Master Servicer or
applicable Special Servicer has knowledge of a default (other than a failure by
the related Mortgagor to pay principal or interest) which in the good faith
reasonable judgment of such Master Servicer or applicable Special Servicer
materially and adversely affects the interests of the Certificateholders and
which has occurred and remains unremedied for the applicable grace period
specified in such Mortgage Loan (or, if no grace period is specified, 60 days);
(v) any Mortgage Loan as to which the Mortgagor admits in writing its inability
to pay its debts generally as they become due, files a petition to take
advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; and (vi) any Mortgage Loan (other than the Non-Trust Serviced
Pari Passu Loan) as to which, in the good faith reasonable judgment (in
accordance with the Servicing Standard) of the applicable Master Servicer or
Special Servicer, (a) a payment default is imminent or is reasonably foreseeable
(except to the extent that, in the good faith reasonable judgment (in accordance
with the Servicing Standard) of the applicable Master Servicer or Special
Servicer, such imminent or reasonably foreseeable default is likely to be cured
within the periods described in clause (i) above) or (b) any other default is
imminent or is reasonably foreseeable and such default, in the judgment of such
Master Servicer or Special Servicer, is reasonably likely to materially and
adversely affect the interests of the Certificateholders.
"Significant Mortgage Loan" means a Mortgage Loan which has a Principal
Balance (together with any other Mortgage Loan with which it is
cross-collateralized) equaling or exceeding 5% of the Aggregate Certificate
Balance or exceeds $35,000,000 or is one of the then current top 10 loans (by
Principal Balance) in the Mortgage Pool.
"Significant Obligor" means a "significant obligor" as defined in
Regulation AB. As of the date hereof, the Mortgagor under the 00-000 Xxxxxxx
Xxxxxx Loan is a Significant Obligor.
"Similar Laws" has the meaning set forth in Section 3.3(d).
"Single-Purpose Entity" means a Person, other than an individual, whose
organizational documents provide substantially to the effect that it is formed
or organized solely for the purpose of owning and collecting payments from
Defeasance Collateral for the benefit of the Trust and which (i) does not engage
in any business unrelated thereto and the financing thereof; (ii) does not have
any assets other than those related to its interest in Defeasance Collateral;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other Person;
(iv) conducts business in its own name and uses separate stationery, invoices
and checks; (v) does not guarantee or assume the debts or obligations of any
other Person; (vi) does not commingle its assets or funds with those of any
other Person; (vii) transacts business with Affiliates on an arm's length basis
pursuant to written agreements; and (viii) holds itself out as being a legal
entity, separate and apart from any other Person, and otherwise complies with
the single-purpose requirements established by the Rating Agencies. The entity's
organizational documents also provide that any dissolution and winding up or
insolvency filing for such entity requires the unanimous consent of all partners
or members, as applicable, and that such documents may not be amended with
respect to the Single-Purpose Entity requirements.
"Sole Certificateholder" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class X, Class X-Y, Class J, Class K, Class L, Class M, Class N,
Class O, Class P and Class EI Certificates or an assignment of the voting rights
thereof; provided, however, that the Certificate Balances of the Class A-1,
Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates have been
reduced to zero.
"Special Servicer" means: (a) with respect to any Mortgage Loan (other
than a Co-op Mortgage Loan), any REO Property acquired by the Trust with respect
to a Mortgage Loan (other than a Co-op Mortgage Loan) and any matters relating
to the foregoing, the General Special Servicer and (b) with respect to any Co-op
Mortgage Loan, any REO Property acquired by the Trust with respect to a Co-op
Mortgage Loan and any matters relating to the foregoing, the Co-op Special
Servicer.
"Special Servicer Compensation" means, with respect to any applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees and Work-Out
Fees and any other amounts to be paid to a Special Servicer pursuant to the
terms of this Agreement.
"Special Servicer Remittance Date" means the Business Day preceding
each Determination Date.
"Special Servicing Fee" means, for each calendar month, as to each
Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan) that is a
Specially Serviced Mortgage Loan (including REO Mortgage Loans), the fraction or
portion of the Special Servicing Fee Rate applicable to such month (determined
using the same interest accrual methodology that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan immediately before
the Due Date occurring in such month.
"Special Servicing Fee Rate" means 0.35% per annum, with a minimum of
$4,000 per month per Specially Serviced Mortgage Loan or REO Property.
"Special Servicing Officer" means any officer or employee of the
applicable Special Servicer involved in, or responsible for, the administration
and servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee and the applicable Master Servicer by such Special Servicer signed by an
officer of such Special Servicer, as such list may from time to time be amended.
"Specially Designated Co-op Mortgage Loan" means, any Co-op Mortgage
Loan or any successor REO Mortgage Loan.
"Specially Serviced Mortgage Loan" means, as of any date of
determination, any Mortgage Loan with respect to which a Servicing Transfer
Event has occurred and is continuing. Promptly upon a Mortgage Loan becoming a
Specially Serviced Mortgage Loan, the applicable Master Servicer shall be
responsible to deliver to the applicable Special Servicer all information,
documents and records relating to such Mortgage Loan, as reasonably requested by
such Special Servicer to enable it to assume its duties with respect to such
Mortgage Loan. A Specially Serviced Mortgage Loan shall cease to be a Specially
Serviced Mortgage Loan from and after the date on which the applicable Special
Servicer notifies the applicable Master Servicer, the Operating Adviser and the
Trustee, in accordance with Section 8.1(b), that such Mortgage Loan, with
respect to such Servicing Transfer Event, has become a Rehabilitated Mortgage
Loan, unless and until such Master Servicer notifies such Special Servicer and
the Trustee, in accordance with Section 8.1(b) that another Servicing Transfer
Event with respect to such Mortgage Loan exists or occurs.
"Standard Hazard Insurance Policy" means a fire and casualty extended
coverage insurance policy in such amount and with such coverage as required by
this Agreement.
"Sub-Servicer" has the meaning set forth in Section 8.4(b).
"Sub-Servicing Agreement" means a Sub-Servicing Agreement, or any other
agreement between a Master Servicer or Primary Servicer and a Sub-Servicer, with
respect to the servicing, primary servicing or sub-servicing of one or more
Mortgage Loans.
"Subcontractor" means any vendor, subcontractor or other Person that is
not responsible for the overall servicing 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 Servicers, the
Special Servicers, an Additional Servicer, a Reporting Sub-Servicer or the
Trustee.
"Subject Securitization Transaction" shall mean the commercial mortgage
securitization transaction contemplated by this Agreement.
"Subordinate Certificates" means, collectively, the Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"Successful Bidder" has the meaning set forth in Section 8.29(d).
"SunTrust" has the meaning assigned in the Preliminary Statement
hereto.
"SunTrust Loans" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"Tax Matters Person" means the Person designated as the "tax matters
person" of the related REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and Temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"Termination Price" has the meaning set forth in Section 10.1(b)
herein.
"30/360 basis" means any Mortgage Loan that accrues interest on the
basis of a 360-day year consisting of twelve 30-day months.
"Title Insurance Policy" means a title insurance policy maintained with
respect to a Mortgage Loan.
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust" or "Trust Fund" means the trust created pursuant to this
Agreement and designated "Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13," the assets
of which consist of all the assets of REMIC I (including the related Mortgage
Loans (other than Excess Interest thereon), such related amounts as shall from
time to time be held in the Certificate Accounts, the Distribution Account
(other than the Excess Interest Sub-Account), the Interest Reserve Account, the
Reserve Account, the REO Accounts, the Trustee's rights under the Insurance
Policies, any REO Properties (or the Trust's interest in a Mortgaged Property
acquired under the 2007-HQ11 Pooling and Servicing Agreement) and other items
referred to in Section 2.1(a) hereof, in each case to the extent allocable to
the related Mortgage Loan), the REMIC I Regular Interests, the REMIC II Regular
Interests, Excess Interest and the Excess Interest Sub-Account. The Trust shall
not include the Non-Trust Serviced Companion Loan.
"Trustee" means U.S. Bank National Association, as trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co trustee (subject to Section
7.9 hereof), as the case may be.
"Trustee Fee" means for each calendar month, as to each Mortgage Loan
(including REO Mortgage Loans and Defeasance Loans), the portion of the Trustee
Fee Rate applicable to such month (determined using the same interest accrual
methodology (other than the rate of accrual) that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of each such Mortgage Loan immediately before the Due Date
occurring in such month.
"Trustee Fee Rate" means 0.00085% per annum.
"Trustee Mortgage File" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan and
any additional documents required to be added to the Mortgage File pursuant to
this Agreement; provided that whenever the term "Trustee Mortgage File" is used
to refer to documents actually received by the Trustee or a Custodian on its
behalf, such terms shall not be deemed to include such documents required to be
included therein unless they are actually so received.
"Trustee's Website" has the meaning set forth in Section 5.4(a) hereof.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"Underwriter" means each of Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC, Natixis Securities North America Inc. (formerly IXIS
Securities North America Inc.), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and SunTrust Capital Markets, Inc., or their respective
successors-in-interest.
"United States Person" means (i) any natural person resident in the
United States, (ii) any partnership or corporation organized or incorporated
under the laws of the United States or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary or
similar account (other than an estate or trust) held by a dealer or other
fiduciary for the benefit or account of a United States Person, (vii) any
discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual) resident
in the United States (other than such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, Affiliates and pension plans.
"United States Tax Person" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership (except to the extent
provided in applicable Treasury Regulations) created or organized in or under
the laws of the United States or any State thereof or the District of Columbia,
including any entity treated as such a corporation or partnership for federal
income tax purposes, (iii) an estate the income of which is includible in gross
income for United States tax purposes, regardless of its source or (iv) 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 United States Tax Persons has
the authority to control all substantial decisions of such trust (or to the
extent provided in applicable Treasury Regulations, a trust in existence on
August 20, 1996, which is eligible to elect to be treated as a United States Tax
Person).
"Unliquidated Advance" means any Advance previously made by a party
hereto that has been previously reimbursed to the Person that made the Advance
by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), 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.
"Unpaid Interest" means, on any Distribution Date with respect to any
Class of Interests or Certificates (excluding the Residual Certificates and the
Class EI Certificates), the portion of Distributable Certificate Interest for
such Class remaining unpaid as of the close of business on the preceding
Distribution Date, plus one month's interest thereon at the applicable
Pass-Through Rate.
"Unrestricted Servicer Reports" means, collectively, the CMSA
Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report, CMSA Loan Periodic
Update File, CMSA Loan Setup File, CMSA Bond Level File, CMSA Collateral Summary
File, CMSA Reconciliation of Funds Report, CMSA REO Status Report, CMSA Loan
Level Reserve/LOC Report, CMSA Advance Recovery Report, CMSA Total Loan Report
and, if and to the extent filed with the Commission, such reports and files as
would, but for such filing, constitute Restricted Master Servicer Reports.
"USAP" has the meaning set forth in Section 13.10 herein.
"Weighted Average Class X-Y Strip Rate" means, with respect to any
Distribution Date, the weighted average of the Class X-Y Strip Rates for each of
the Group X-Y REMIC I Regular Interests, weighted on the basis of their
respective Notional Amounts as of the close of business on the preceding
Distribution Date.
"Weighted Average REMIC I Net Mortgage Rate" means, with respect to any
Distribution Date, the weighted average of the REMIC I Net Mortgage Rates for
the Group PB REMIC I Regular Interests, weighted on the basis of their
respective Certificate Balance as of the close of business on the preceding
Distribution Date.
"Work-Out Fee" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than the Non-Trust Serviced Pari Passu Loan), equal to the
product of (x) 1.00% and (y) the amount of each collection of interest (other
than default interest and Excess Interest) and principal received (including any
Condemnation Proceeds received and applied as a collection of such interest and
principal) on such Mortgage Loan so long as it remains a Rehabilitated Mortgage
Loan or otherwise payable as set forth in Section 9.21(d).
"Workout-Delayed Reimbursement Amount" has the meaning set forth in
subsection (II)(A) of Section 5.2(a).
"Yield Maintenance Charges" means, with respect to any Distribution
Date, the aggregate of all yield maintenance charges, if any, received during
the related Collection Period in connection with Principal Prepayments.
"Yield Maintenance Minimum Amount" means, with respect to a Mortgage
Loan that provides for a Yield Maintenance Charge to be paid in connection with
any Principal Prepayment thereon or other early collection of principal thereof,
any specified amount or specified percentage of the amount prepaid which
constitutes the minimum amount that such Yield Maintenance Charge may be.
Section 1.2 Calculations Respecting Mortgage Loans
(a) Calculations required to be made by the Trustee pursuant to this
Agreement with respect to any Mortgage Loan shall be made based upon current
information as to the terms of such Mortgage Loan and reports of payments
received from the applicable Master Servicer on such Mortgage Loan and payments
to be made to the Trustee as supplied to the Trustee by such Master Servicer.
The Trustee shall not be required to recompute, verify or recalculate the
information supplied to it by the applicable Master Servicer and may
conclusively rely upon such information in making such calculations. If,
however, a Responsible Officer of the Trustee has actual knowledge of an error
in the calculations, the Trustee shall inform the applicable Master Servicer of
such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan
documents, any amounts (other than escrow and reserve deposits and
reimbursements of Servicing Advances and expenses) received in respect of a
Mortgage Loan as to which a default has occurred and is continuing (other than
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds and REO Income) shall be applied as follows: first, to overdue interest
due with respect to such Mortgage Loan at the Mortgage Rate thereof, second, to
current interest due with respect to such Mortgage Loan at the Mortgage Rate
thereof, third, to the reduction of the Principal Balance of such Mortgage Loan
to zero if such Mortgage Loan has been accelerated, and in respect of any
scheduled payments of principal then due to the extent that such Mortgage Loan
has not yet been accelerated, fourth, to any default interest and other amounts
due on such Mortgage Loan and fifth, to Late Fees due with respect to such
Mortgage Loan. The foregoing allocations are intended to govern loan level
allocations but shall not govern allocations of such amounts at the trust level
for the purpose of determining Principal Distribution Amounts or Distributable
Certificate Interest.
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds,
Purchase Proceeds and REO Income shall be applied as follows: first, as a
recovery of any related and unreimbursed Advances (together with interest
thereon) and Unliquidated Advances (to the Trust), and if applicable, unpaid
Liquidation Expenses; second, as a recovery of unpaid servicing compensation;
third, as a recovery of any Additional Trust Expenses, fourth, as a recovery of
any Nonrecoverable Advances thereon, except with respect to any Unliquidated
Advance previously reimbursed from principal pursuant to Section 5.2(a)(II)(iv);
fifth, as a recovery of any remaining accrued and unpaid interest on such
Mortgage Loan at the related Mortgage Rate to, but not including, the date of
receipt (or, in the case of a full monthly payment from any Mortgagor, through
the related Due Date); sixth, as a recovery of any remaining principal of such
Mortgage Loan then due and owing, including by reason of acceleration of the
Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid Principal Balance); seventh, unless a
Liquidation Event has occurred with respect to such Mortgage Loan, as a recovery
of amounts to be currently applied to the payment of real estate taxes,
assessments, insurance premiums (including premiums on any Environmental
Insurance Policy), ground rents (if applicable) and similar items; eighth, as a
recovery of any Late Fees and default interest then due and owing under such
Mortgage Loan; ninth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Mortgage Loan; tenth, as a
recovery of any assumption fees, Modification Fees and extension fees then due
and owing under such Mortgage Loan; and eleventh, as a recovery of any other
amounts then due and owing under such Mortgage Loan.
(c) Notwithstanding the foregoing applications of amounts received by
or on behalf of the Trust in respect of any Mortgage Loan, any amounts due and
owing under the related Mortgage Note and Mortgage (including for principal and
accrued and unpaid interest) shall be applied in accordance with the express
provisions of the related Mortgage Loan documents.
Section 1.3 Calculations Respecting Accrued Interest
Accrued interest on any Certificate shall be calculated based upon a
360-day year consisting of twelve 30-day months. Pass-Through Rates shall be
carried out to eight decimal places, rounded if necessary. All dollar amounts
calculated hereunder shall be rounded to the nearest xxxxx.
Section 1.4 Interpretation
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to such
term shall be equally applicable to both the singular and plural forms of such
term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
Section 1.5 ARD Loans
Notwithstanding any provision of this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of the
step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the
principal on the Anticipated Repayment Date as specifically provided for in the
related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not an
asset of any REMIC Pool.
(c) Neither a Master Servicer nor a Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of such Master Servicer and such Special Servicer, as the
case may be, the Liquidation Proceeds expected to be recovered in connection
with such enforcement action will cover the anticipated costs of such
enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to each ARD Loan after its Anticipated Repayment Date,
the respective Master Servicer or the respective Special Servicer, as the case
may be, shall be permitted, in its discretion, to waive in accordance with
Section 14.1 and Section 14.2 hereof, all or any accrued Excess Interest if,
prior to the related Maturity Date, the related Mortgagor has requested the
right to prepay the Mortgage Loan in full together with all payments required by
the Mortgage Loan in connection with such prepayment except for all or a portion
of accrued Excess Interest, provided that the respective Master Servicer's or
the respective Special Servicer's determination to waive the right to such
accrued Excess Interest is in accordance with the Servicing Standard and with
Section 14.1 and Section 14.2 hereof. The respective Master Servicer or the
respective Special Servicer, as the case may be, will have no liability to the
Trust, the Certificateholders or any other Person so long as such determination
is based on such criteria.
Section 1.6 Certain Matters Relating to the Non-Trust-Serviced Pari
Passu Loan
With respect to the Non-Trust-Serviced Pari Passu Loan, in the event
that the General Master Servicer or the Trustee receives notice from any of
Xxxxx'x, Fitch or S&P that the General Master Servicer or the Trustee, as
applicable, is no longer approved by such Rating Agency as to its eligibility
requirements hereunder, the General Master Servicer or the Trustee, as
applicable, shall be required to notify each of the other parties to this
Agreement and the 2007-HQ11 Master Servicer of the same.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans
(a) Effective as of the Closing Date, the Depositor does hereby assign
in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii)
the Depositor's rights under the Co-Lender Agreement and the 2007-HQ11 Pooling
and Servicing Agreement, and (iv) all other assets included or to be included in
REMIC I for the benefit of REMIC II and REMIC III. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-Off Date. The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from and after the Cut-Off
Date. The transfer and assignment of the Non-Trust-Serviced Pari Passu Loan to
the Trustee and the right to service such Mortgage Loan is subject to the terms
and conditions of the 2007-HQ11 Pooling and Servicing Agreements and the
Co-Lender Agreement.
(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller 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 hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed
to the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the Trustee the remaining documents constituting the
Mortgage File for each Mortgage Loan (or, with respect to the Non-Trust-Serviced
Pari Passu Loan, copies thereof) within the time period set forth therein. None
of the Trustee, any Custodian, any Master Servicer or any Special Servicer shall
be liable for any failure by any Seller or the Depositor to comply with the
document delivery requirements of the Mortgage Loan Purchase Agreements and this
Section 2.1(b).
(c) Each Seller other than Natixis and NCB, FSB, at its own expense,
for the Mortgage Loans sold to the Depositor by such Seller, and the Trustee, at
the expense of Natixis and NCB, FSB, as applicable, for the Natixis Loans sold
to the Depositor by Natixis, and the NCB, FSB Loans sold to the Depositor by
NCB, FSB, shall promptly (and in any event within 90 days following the receipt
of all recording information necessary to record such document) 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 (iv), (vi) and (ix)(B) of
the definition of "Mortgage File" (except with respect to the Non-Trust-Serviced
Pari Passu Loan). Each such assignment shall reflect that it should be returned
by the public recording office to the Trustee following recording or filing or
such party responsible for recording such assignment shall be responsible for
forwarding such assignment to the Trustee (except with respect to any Mortgage
File document recorded in the name of MERS or its designee); provided that in
those instances where the public recording office retains the original
Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC
financing statements, the Trustee shall obtain therefrom, at the expense of the
applicable Seller, a certified copy of the recorded original and shall forward
copies thereof to the applicable Master Servicer and the applicable Special
Servicer. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
promptly notify the applicable Seller and the applicable Seller for its
respective Mortgage Loans shall promptly prepare or cause to be prepared and
delivered to the Trustee a substitute therefor or cure such defect, as the case
may be, and thereafter the Trustee shall upon receipt thereof from such Seller
cause the same to be duly recorded or filed, as appropriate.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreements or Exhibit 5 to the Mortgage Loan Purchase
Agreements in favor of the Trustee, the applicable Master Servicer and the
applicable Special Servicer to empower the Trustee, such Master Servicer and, in
the event of the failure or incapacity of the Trustee and such Master Servicer,
such Special Servicer, to submit for recording, at the expense of the applicable
Seller, any mortgage loan documents required to be recorded as described in the
preceding paragraph and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage Files (so long as
original counterparts have previously been delivered to the Trustee). The
Sellers agree to reasonably cooperate with the Trustee, the Master Servicer and
the Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The Trustee and each other party hereto agrees that no such power
of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above; provided, however, the Trustee shall
not submit such assignments for recording if the applicable Seller produces
evidence that it has sent any such assignment for recording and certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the servicing of any
Mortgage Loans and that are not required to be a part of a Mortgage File in
accordance with the definition thereof and are reasonably necessary for the
ongoing administration and/or servicing of the applicable Mortgage Loan shall be
delivered to the Master Servicer (with a copy to the related Primary Servicer,
if applicable), on or before the date that is 75 days following the Closing Date
and shall be held by such Master Servicer or the related Primary Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders. To the
extent delivered to the Master Servicer and the related Sub-Servicer or the
related Primary Servicer, as applicable, by the related Seller, the Servicer
Mortgage File will consist of the documents listed in the definition of Mortgage
File; provided, however, the Seller shall not be required to deliver any draft
documents, attorney-client privileged communications, internal correspondence or
credit analysis. Delivery of any of the foregoing documents to the applicable
Primary Servicer (or sub-servicer) shall be deemed delivery to the applicable
Master Servicer and satisfy the Depositor's obligations under this Section
2.1(d). Each of the foregoing items may be delivered in electronic form, to the
extent such document is available in such form and such form is reasonably
acceptable to the applicable Master Servicer. None of any Master Servicer, any
Special Servicer or any Primary Servicer shall have any liability for the
absence of any of the foregoing items from the Servicing Mortgage File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee and the Master Servicer
on or before the Closing Date a copy of a fully executed counterpart of each
Mortgage Loan Purchase Agreement, as in full force and effect on the Closing
Date, which Mortgage Loan Purchase Agreements shall contain the representations
and warranties made by the Sellers with respect to each related Mortgage Loan as
of the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMC Loans
from MSMC, the Natixis Loans from Natixis, the NCB, FSB Loans from NCB, FSB, and
the SunTrust Loans from SunTrust. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the MSMC
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the Natixis
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the NCB, FSB
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the SunTrust
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. To avoid the unnecessary expense and
administrative inconvenience associated with the execution and recording of
multiple assignment documents, MSMC, Natixis, NCB, FSB and SunTrust, as
applicable, are required under the Mortgage Loan Purchase Agreements to deliver
Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements in blank or naming the Trustee, on
behalf of the Certificateholders, as assignee. Notwithstanding the fact that the
assignments shall be in blank or name the Trustee, on behalf of the
Certificateholders, as the assignee, the parties hereto acknowledge and agree
that for all purposes the MSMC Loans shall be deemed to have been transferred
from MSMC to the Depositor, the Natixis Loans shall be deemed to have been
transferred from Natixis to the Depositor, the NCB, FSB Loans shall be deemed to
have been transferred from NCB, FSB to the Depositor, the SunTrust Loans shall
be deemed to have been transferred from SunTrust to the Depositor, and all
Mortgage Loans shall be deemed to have been transferred from the Depositor to
the Trustee on behalf of the Certificateholders.
With respect to the Non-Trust-Serviced Pari Passu Loan, the related
Mortgage File (exclusive, however, of the original Mortgage Note), together with
certain other documents and records, and all unapplied Escrow Payments and
Reserve Funds, in the possession of the Depositor or the related Seller that
relate to such Mortgage Loan has been delivered to the 2007-HQ11 Trustee in
accordance with the Co-Lender Agreement and the 2007-HQ11 Pooling and Servicing
Agreement. Such documents and funds shall be held thereby on behalf of the
Trustee and the holders of the Non-Trust Serviced Companion Loan.
(g) With respect to the Mortgage Loans for which the first monthly
payment date will not occur until May 2007, an interest only payment at the
applicable Net Mortgage Rate will be funded by the applicable Seller under the
terms of the related Mortgage Loan Purchase Agreement on the Closing Date. The
Depositor shall deliver such advance interest amount to the Trustee in
connection with the Depositor's assignment pursuant to Section 2.1(a) above.
Section 2.2 Acceptance by Trustee
The Trustee will hold (i) the documents constituting a part of the
Mortgage Files delivered to it, (ii) the REMIC I Regular Interests, (iii) the
REMIC II Regular Interests, in each case, in trust for the use and benefit of
all present and future Certificateholders; and (iv) the assets of the Class EI
Grantor Trust in trust for the use and benefit of the present and future Holders
of the Class EI Certificates.
On the Closing Date in respect of the Initial Certification, and within
90 days after the Closing Date in respect of the Final Certification, the
Trustee shall examine the Mortgage Files in its possession, and shall deliver to
the Depositor, the Sellers, the Master Servicers, the Special Servicers and the
Operating Adviser, a certification (the "Initial Certification" and the "Final
Certification," respectively, in the respective forms set forth as Exhibit B-1
and Exhibit B-2 hereto), which shall be in electronic format (i) in the case of
the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clause (i) of the definition of Mortgage File are in its possession, (B) such
documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, and (C) each Mortgage Note has been endorsed as
provided in clause (i) of the definition of Mortgage File, and (ii) in the case
of the Final Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions to Mortgage
File delivery attached thereto, to the effect that: (A) all documents pursuant
to clauses (i), (ii), (iv), (vi), (viii) and (xii) of the definition of Mortgage
File required to be included in the Mortgage File (to the extent required to be
delivered pursuant to this Agreement and any applicable Primary Servicing
Agreement), and with respect to all documents specified in the other clauses of
the definition of Mortgage File to the extent actually known by a Responsible
Officer of the Trustee to be required pursuant to this Agreement (assuming that,
with respect to the documents referred to in clause (xii) of the definition of
Mortgage File, an original letter of credit in the possession of the Trustee is
not so required, unless a Responsible Officer of the Trustee has actual
knowledge to the contrary), are in its possession, (B) such documents have been
reviewed by it and have not been materially mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(C) based on its examination and only as to the Mortgage Note and Mortgage or
the appraisal of the related Mortgaged Property, the street address of the
Mortgaged Property set forth in the Mortgage Loan Schedule respecting such
Mortgage Loan accurately reflects the information contained in the documents in
the Mortgage File, (D) each Mortgage Note has been endorsed as required by the
terms of this Agreement and (E) the Trustee on behalf of the Trust is shown as
the owner of each Mortgage recorded in the name of MERS. Notwithstanding the
foregoing, the delivery of an original or a copy of a binder, pro forma policy
or title commitment certified by the title company in lieu of the delivery of
the actual Title Insurance Policy shall not be considered a Material Document
Defect with respect to any Mortgage File. The Trustee shall deliver to the
Master Servicers, the Special Servicers, the Operating Adviser and each Seller a
copy of such Final Certification, which may be in electronic format.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of Mortgage File, with evidence of recording thereon) or otherwise
provide evidence of such recordation to the applicable Master Servicer, the
applicable Special Servicer, the Operating Adviser and each Seller, and if any
recorded assignment of Mortgage has not been received by the Trustee by such
time, the Trustee shall provide information in such confirmation on the status
of missing assignments. The Trustee agrees to use reasonable efforts to submit
for recording any unrecorded assignments of Mortgage that have been delivered to
it (including effecting such recordation process through or cooperating with the
applicable Seller) such recordation to be at the expense of the applicable
Seller; provided, however, that the Trustee shall not submit for recording any
such assignments if the applicable Seller produces evidence that it has sent any
such assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock-box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to the
Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and (iii) the second anniversary of the Closing
Date, and shall provide such updated schedule of exceptions (which may be in
electronic format) to each of the Depositor, each Seller (as to its respective
Mortgage Loans only), the applicable Master Servicer, the applicable Special
Servicer and the Operating Adviser on or about the date that is 180 days after
the Closing Date and then again every 90 days thereafter (until the earliest
date specified above, except, with respect to clause (iii) above, the Trustee
shall continue to provide such updated schedule of exceptions annually after
such date). The Trustee shall promptly forward a copy thereof to each
Certificateholder in the Controlling Class and shall deliver or make available a
copy thereof to other Certificateholders pursuant to Sections 5.4(e) and 5.4(f).
Promptly, and in any event within two Business Days, following any request
therefor by the Depositor, the applicable Master Servicer, the applicable
Special Servicer or the Operating Adviser that is made later than two years
following the Closing Date, the Custodian (or the Trustee) shall deliver an
updated schedule of exceptions, which may be in electronic format (to the extent
the prior schedule showed exceptions), to the requesting Person and the Trustee,
which shall make available a copy thereof pursuant to Section 5.4(e).
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
The Master Servicer agrees to hold all of the original letters of
credit, which are part of the Mortgage File, in trust for the benefit of the
Trust Fund.
Section 2.3 Repurchase of Mortgage Loans for Material Document Defects
and Material Breaches of Representations and Warranties
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required (and including the expiration of any grace or cure period), has not
been properly executed, or is defective on its face or discovers or receives
notice of a breach of any of the representations and warranties relating to the
Mortgage Loans required to be made by a Seller regarding the characteristics of
the Mortgage Loans and/or related Mortgaged Properties as set forth in the
related Mortgage Loan Purchase Agreements, and in either case such defect or
breach either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect," and such a breach described in the preceding
clause (i) or (ii), a "Material Breach") such party shall give prompt written
notice to the other parties hereto and to each Rating Agency subject to the
terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in any
event within three Business Days) upon becoming aware of any such Material
Document Defect or Material Breach, the applicable Master Servicer shall, and
the applicable Special Servicer may, request that the related Seller, not later
than 90 days from such Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or Material
Breach, as the case may be, in all material respects; provided, however, that if
such Material Document Defect or Material Breach, as the case may be, cannot be
corrected or cured in all material respects within such 90-day period, and such
Material Document Defect or Material Breach would not cause the Mortgage Loan to
be other than a "qualified mortgage" (as defined in the Code) but the related
Seller is diligently attempting to effect such correction or cure, as certified
by such Seller in an Officer's Certificate delivered to the Trustee, then the
cure period will be extended for an additional 90 days unless, solely in the
case of a Material Document Defect, (x) the Mortgage Loan is at the end of the
initial 90 day period a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" and
(y) the Material Document Defect was identified in a certification delivered to
the Seller by the Trustee pursuant to Section 2.2 not less than 90 days prior to
the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to a Seller pursuant to Section 2.2 or otherwise nor possession of such
certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or knowledge or awareness by
the Seller of any Material Document Defect listed therein. Notwithstanding
anything herein to the contrary, any breach of the representation and warranty
contained under the heading "Prepayment Premiums" in Exhibit 2 to each Mortgage
Loan Purchase Agreement with respect to any Mortgage Loan shall constitute a
Material Breach only if such prepayment premium or yield maintenance charge is
not deemed "customary" for commercial mortgage loans at the time of origination,
as evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. In addition, if such Mortgage Loan is modified so that it becomes a
Qualifying Substitute Mortgage Loan, such breach shall be deemed cured and the
related Seller will not be obligated to repurchase such Mortgage Loan or
otherwise remedy such breach. The related Seller is required to pay for any
expenses incurred by the applicable Master Servicer or the applicable Special
Servicer in connection with such modification. Notwithstanding the foregoing,
with respect to the Non-Trust-Serviced Pari Passu Loan, the General Master
Servicer and the General Special Servicer shall not enforce the related Mortgage
Loan Purchase Agreement if the 2007-HQ11 Master Servicer or 2007-HQ11 Special
Servicer shall be entitled to, and shall be, enforcing such Mortgage Loan
Purchase Agreement pursuant to the 2007-HQ11 Pooling and Servicing Agreement on
behalf of the Non-Trust-Serviced Pari Passu Loan and in such event any related
Liquidation Fee shall be payable to the 2007-HQ11 Special Servicer to the extent
required by the 2007-HQ11 Pooling and Servicing Agreement and no Liquidation Fee
shall be payable hereunder. However, with respect to any Material Breach or
Material Document Defect that relates solely to the Non-Trust-Serviced Pari
Passu Loan and not to the remainder of its Loan Group, and which is not being
enforced by the 2007-HQ11 Master Servicer or 2007-HQ11 Special Servicer, the
General Master Servicer shall, and the General Special Servicer may, proceed as
otherwise described above or below with respect to the enforcement of the
related Mortgage Loan Purchase Agreement, and the General Special Servicer may
receive a Liquidation Fee on the related Liquidation Proceeds to the extent
otherwise permitted hereby. Any expenses incurred by the applicable Master
Servicer or Special Servicer in connection with this Section 2.3(a) shall be
considered a Servicing Advance.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller that is the subject of such Material Breach shall be obligated,
not later than the last day of such permitted cure period, to (i) repurchase the
affected Mortgage Loan or REO Mortgage Loan from the Trust at the applicable
Purchase Price in accordance with the related Mortgage Loan Purchase Agreement,
or (ii) if within the two-year period commencing on the Closing Date, at the
related Seller's option, replace, without recourse, such Mortgage Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or Material Breach would cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), then notwithstanding the
previous sentence, the repurchase or substitution must occur within 90 days from
the earlier of the date the related Seller discovered or was notified of the
breach or defect.
As to any Qualifying Substitute Mortgage Loan or Loans, the applicable
Master Servicer shall not execute any instrument effecting the substitution
unless the related Seller has delivered to the Trustee for such Qualifying
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage, and such other documents and agreements as are required
by Section 2.1, with the Mortgage Note endorsed as required by Section 2.1 and
such Master Servicer shall be entitled to rely on statements and certifications
from the Trustee for this purpose. If the Mortgage related to the Qualifying
Substitute Mortgage Loan has been recorded in the name of MERS or its designee,
the applicable Master Servicer shall use commercially reasonable efforts (and
the Trustee shall cooperate with such efforts of such Master Servicer) to
reflect the release of such Mortgage on the records of MERS. No substitution may
be made in any calendar month after the Determination Date for such month.
Monthly payments due with respect to Qualifying Substitute Mortgage Loans in the
month of substitution shall not be part of the Trust and will be retained by the
applicable Master Servicer and remitted by such Master Servicer to the related
Seller on the next succeeding Distribution Date. For the month of substitution,
distributions to Certificateholders will include the Scheduled Payment due on
the related Deleted Mortgage Loan for such month and thereafter the related
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
The applicable Master Servicer shall amend or cause to be amended the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and
the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon
such amendment such Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee and the applicable Special
Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee (and the
Depositor, if necessary) shall execute and deliver such instruments of transfer
or assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee or the Depositor) in the related
Seller or its designee to any Deleted Mortgage Loan (including any property
acquired in respect thereof or any insurance policy proceeds relating thereto)
substituted for pursuant to this Section 2.3.
If (i) a Mortgage Loan is to be repurchased or replaced in connection
with a Material Document Defect or Material Breach as contemplated above, (ii)
such Mortgage Loan is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans in the Trust and (iii) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such other Mortgage Loans (without regard to this paragraph),
then the applicable document defect or breach (as the case may be) shall be
deemed to constitute a Material Document Defect or Material Breach (as the case
may be) as to each such other Mortgage Loan for purposes of the above
provisions, and the related Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above unless, in
the case of such breach or document defect, both of the following conditions
would be satisfied if the related Seller were to repurchase or replace only
those Mortgage Loans as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph (the "Affected Loan(s)"): (1) the
debt service coverage ratio for all such other Mortgage Loans (excluding the
Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement (determined as provided in the definition of Debt
Service Coverage Ratio, except that net cash flow for such four calendar
quarters, rather than year-end, shall be used) is equal to the greater of (x)
the debt service coverage ratio for all such Mortgage Loans (including the
Affected Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the
Final Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for
all such other Mortgage Loans (excluding the Affected Loan(s)) is not greater
than the lesser of (x) the current Loan-to-Value Ratio for all such Mortgage
Loans (including the Affected Loan(s)) set forth under the heading "Cut-Off Date
LTV" in Appendix II to the Final Prospectus Supplement and (y) 75%. The
determination of the applicable Master Servicer as to whether the conditions set
forth above have been satisfied shall be conclusive and binding in the absence
of manifest error. The applicable Master Servicer will be entitled to cause to
be delivered, or direct the related Seller to (in which case the related Seller
shall) cause to be delivered to such Master Servicer: (i) an Appraisal of any or
all of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (2) above has been satisfied, in each case at the
expense of the related Seller if the scope and cost of the Appraisal is approved
by the related Seller (such approval not to be unreasonably withheld) and (ii)
an Opinion of Counsel that not requiring the repurchase of each such other
Mortgage Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the applicable Seller is required to repurchase or substitute for
such Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above
while the Trustee continues to hold any other Mortgage Loan that is
cross-collateralized and cross-defaulted (each, a "Cross-Collateralized Loan")
with such Repurchased Loan, the related Seller and the Depositor have agreed in
the Mortgage Loan Purchase Agreement to modify, prior to such repurchase or
substitution, the related Mortgage Loan documents in a manner such that such
affected Repurchased Loan, on the one hand, and any related
Crossed-Collateralized Loans held by the Trustee, on the other, would no longer
be cross-defaulted or cross-collateralized with one another; provided that the
applicable Seller shall have furnished the Trustee, at the expense of the
applicable Seller, with a Nondisqualification Opinion that such modification
shall not cause an Adverse REMIC Event; provided, further, that if such
Nondisqualification Opinion cannot be furnished, the applicable Seller and the
Depositor have agreed in the applicable Mortgage Loan Purchase Agreement that
such repurchase or substitution of only the Repurchased Loan, notwithstanding
anything to the contrary herein, shall not be permitted and the applicable
Seller shall repurchase or substitute for the Repurchased Loan and all related
Crossed-Collateralized Loans. Any reserve or other cash collateral or letters of
credit securing the Repurchased Loan and the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule
IX hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any of
the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (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 and a copy of the Mortgage Note; (b) the absence
from the Mortgage File of the original signed Mortgage, unless there is included
in the Mortgage File (i) a copy of the Mortgage certified by the local authority
with which the Mortgage was recorded or (ii) a true and correct copy of the
Mortgage together with an Officer's Certificate; or (c) the absence from the
Mortgage File of the item called for by paragraph (viii) of the definition of
Mortgage File (or, with respect to the Non-Trust-Serviced Pari Passu Loan, a
copy thereof). If any of the foregoing Material Document Defects is discovered
by the Custodian (or the Trustee if there is no Custodian) or any other party
hereto, the Trustee (or as set forth in Section 2.3(a), the applicable Master
Servicer) will take the steps described elsewhere in this section, including the
giving of notices to the Rating Agencies and the parties hereto and making
demand upon the related Seller for the cure of the document defect or repurchase
or replacement of the related Mortgage Loan.
(b) If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.12, Section 9.15, Section 9.36 and Section 14.1, as applicable, of this
Agreement, while pursuing the repurchase claim. Each Seller acknowledges and
agrees that any modification of the Mortgage Loan pursuant to such a work-out
shall not constitute a defense to any repurchase claim nor shall such
modification or work-out change the Purchase Price due from the related Seller
for any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon
such Mortgage Loan and sale of the REO Property, to a Person other than the
related Seller shall be without (i) recourse of any kind (either expressed or
implied) by such Person against the related Seller and (ii) representation or
warranty of any kind (either expressed or implied) by the related Seller to or
for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, each Master Servicer or Special Servicer, as applicable, shall
notify the related Seller of the discovery of the Material Document Defect or
Material Breach and the related Seller shall be required to follow the
procedures set forth in the related Mortgage Loan Purchase Agreement to correct
or cure such Material Document Defect or Material Breach or purchase the REO
Property at the Purchase Price. If the related Seller fails to correct or cure
the Material Document Defect or Material Breach or purchase the REO Property,
then the provisions above regarding notice of offers related to such REO
Property and the related Seller's right to purchase such REO Property shall
apply. If a court of competent jurisdiction issues a final order that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the related Seller otherwise accepts liability, then, after
the expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 hereof, the related Seller
will be obligated to pay to the Trust the difference between any Liquidation
Proceeds received upon such liquidation (including those arising from any sale
to the related Seller) and the Purchase Price; provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys fees) related thereto; provided, further, that
if the Seller is the prevailing party in such action, such costs, fees and
expenses (including reasonable attorneys fees) shall be an Additional Trust
Expense.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the Special Servicer will not receive a Liquidation
Fee in connection with (x) such liquidation or sale or any portion of the
Work-Out Fee that accrues after the related Seller receives notice of a breach
or defect until a final determination has been made, as set forth in the prior
paragraph, as to whether the related Seller is or was obligated to repurchase
such related Mortgage Loan or REO Property or (y) a repurchase by the related
Seller of the Non-Trust-Serviced Pari Passu Loan, where the repurchase
obligation has been enforced by the 2007-HQ11 Master Servicer or 2007-HQ11
Special Servicer. Subject to the last two sentences of the first paragraph of
Section 2.3(a), upon such determination, the Special Servicer will be entitled:
(i) with respect to a determination that the related Seller is or was obligated
to repurchase a Mortgage Loan, to collect a Liquidation Fee, if due in
accordance with the definition thereof, based upon the full Purchase Price of
the related Mortgage Loan or REO Property, with such Liquidation Fee payable by
the related Seller or (ii) with respect to a determination that the related
Seller is not or was not obligated to repurchase a Mortgage Loan (or the Trust
decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) collect any accrued and unpaid Work-Out Fee, based on
amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amounts to be paid from
amounts in the Certificate Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
applicable Master Servicer will determine the amount (if any) by which the
aggregate Principal Balance of all such Qualifying Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Principal Balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall cause the related Seller to deposit the
amount of such shortage into the Certificate Account in the month of
substitution, without any reimbursement thereof. In addition, the Depositor
shall cause the related Seller to deposit into the Certificate Account, together
with such shortage, if any, an amount equal to interest on the Deleted Mortgage
Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due
Date as to which interest was last paid up to the Due Date next succeeding such
substitution together with the amount of unreimbursed Servicing Advances,
amounts required to be paid to the applicable Special Servicer but remaining
unpaid or unreimbursed, and interest on unreimbursed Advances with respect to
such Deleted Mortgage Loans at the Advance Rate. The Depositor shall cause the
related Seller, in the case of the Mortgage Loans, to give notice in writing
(accompanied by an Officer's Certificate as to the calculation of such shortage)
to the Trustee and the applicable Master Servicer of such event which notice
shall be accompanied by an Officer's Certificate as to the calculation of such
shortfall.
If the affected Mortgage Loan is to be repurchased, the applicable
Master Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 2.3, the Trustee, the applicable Master
Servicer and the applicable Special Servicer shall each tender to the related
Seller, upon delivery to each of them of a receipt executed by such Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it (including, without limitation, all documents delivered to
the Trustee and such Master Servicer pursuant to the related Mortgage Loan
Purchase Agreement), and each document that constitutes a part of the Mortgage
File shall be endorsed or assigned to the extent necessary or appropriate to the
related Seller or its designee in the same manner, and pursuant to appropriate
forms of assignment, substantially similar to the manner and forms pursuant to
which documents were previously assigned to the Trustee, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the applicable Master
Servicer of a Request for Release. The applicable Master Servicer shall, and is
hereby authorized and empowered by the Trustee to, prepare, execute and deliver
in its own name, on behalf of the Certificateholders and the Trustee or any of
them, the endorsements and assignments contemplated by this Section 2.3, and the
Trustee shall execute and deliver any powers of attorney necessary to permit the
applicable Master Servicer to do so. The applicable Master Servicer shall, and
is also hereby authorized and empowered by the Trustee to, reconvey to the
related Seller any deposits then held in the applicable Escrow Account relating
to the Mortgage Loan being repurchased or substituted for. Each Master Servicer
shall indemnify the Trustee for all costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with any negligent or
intentional misuse of any such powers of attorney by such Master Servicer.
(d) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) MSMC, as Seller under Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the MSMC
Loans, (ii) Natixis, as Seller under Mortgage Loan Purchase Agreement II, will
be providing remedies with respect to the Natixis Loans, (iii) SunTrust, as
Seller under Mortgage Loan Purchase Agreement III, will be providing remedies
with respect to the SunTrust Loans and (iv) NCB, FSB, as Seller under Mortgage
Loan Purchase Agreement IV, will be providing the remedies with respect to the
NCB, FSB Loans. No amendment to this Agreement may change in any manner the
obligations of a Seller under the related Mortgage Loan Purchase Agreement
without the consent of such Seller in writing.
(e) The Trustee shall enforce the provisions of this Section 2.3.
Alternatively, the Trustee may, in its sole discretion, appoint a designee to
enforce such provisions (which, with the applicable Master Servicer's consent,
may be such Master Servicer or which, with the applicable Special Servicer's
consent, may be such Special Servicer).
Section 2.4 Representations and Warranties
The Depositor hereby represents and warrants to the Master Servicers,
the Special Servicers and the Trustee (in its capacity as Trustee of the Trust)
as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests
Effective as of the Closing Date, the Depositor does hereby transfer,
assign, set over, deposit with and otherwise convey to the Trustee, without
recourse, in trust, all the right, title and interest of the Depositor in and to
(i) the assets of REMIC I in exchange for the REMIC I Interests, (ii) the assets
of REMIC II in exchange for the REMIC II Interests, (iii) the assets of REMIC
III in exchange for the REMIC III Certificates and (iv) the assets of the Class
EI Grantor Trust in exchange for the Class EI Certificates.
Section 2.6 Certain Matters Relating to Non-Trust-Serviced Pari Passu
Loan
(a) Notwithstanding anything to the contrary in this Agreement, with
respect to the Non-Trust-Serviced Pari Passu Loan, each of the document delivery
requirements set forth herein will be satisfied by the delivery by the related
Seller of copies of each such document specified herein (other than the Mortgage
Note (and all intervening endorsements) evidencing the Non-Trust-Serviced Pari
Passu Loan, with respect to which the originals shall be required); provided,
the document delivery requirements for the Assignment of Mortgage, any
assignment of Assignment of Leases and any UCC-2 or UCC-3 financing statement
set forth herein will be satisfied by the delivery by such Seller of copies of
such documents made in favor of the 2007-HQ11 Trustee pursuant to the 2007-HQ11
Pooling and Servicing Agreement.
(b) Promptly following the Closing Date, the Trustee shall send written
notice (which notice may be delivered electronically) (in the form of Exhibit BB
attached hereto) to 2007-HQ11 Trustee stating that, among other things, the
Trustee is the holder of the RREEF Portfolio Pari Passu Loan as of the Closing
Date.
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates
(a) The Certificates shall be in substantially the forms set forth in
Exhibits A-1 through A-27 hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
any of the Certificates may be listed, all as determined by the officers
executing such Certificates, as evidenced by their execution thereof.
(b) The Class A Certificates, the Class A-M Certificates and the Class
A-J Certificates will be issuable in denominations of $25,000 initial
Certificate Balance and in any whole dollar denomination in excess thereof. The
Class X, Class X-Y, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
will be issuable in denominations of $100,000 initial Certificate Balance or
initial Notional Amount (as applicable) or in any whole dollar denomination in
excess thereof. The Class EI, Class R-I, Class R-II and Class R-III Certificates
each will be issued in minimum Percentage Interests of 10% and integral
multiples of 10% in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A, Class A-M, Class A-J,
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates that are
issued in book-entry form, on the Closing Date, the Authenticating Agent upon
the order of the Depositor shall authenticate Book-Entry Certificates that are
issued to a Clearing Agency or its nominee as provided in Section 3.7 against
payment of the purchase price thereof. With respect to the Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class EI and Class X-Y Certificates
that are issued in definitive form, on the Closing Date, the Authenticating
Agent upon the order of the Depositor shall authenticate Definitive Certificates
that are issued to the registered holder thereof against payment of the purchase
price thereof.
Section 3.2 Registration
The Trustee shall be the initial Certificate Registrar in respect of
the Certificates and the Certificate Registrar shall maintain books for the
registration and for the transfer of Certificates (the "Certificate Register").
The Certificate Registrar may resign or be discharged or removed by the Trustee
or the Certificateholders, and a new successor may be appointed, in accordance
with the procedures and requirements set forth in Sections 7.6 and 7.7 hereof
with respect to the resignation, discharge or removal of the Trustee and the
appointment of a successor Trustee. The Certificate Registrar may appoint, by a
written instrument delivered to the Holders and the Trustee, any trust company
to act as co-registrar under such conditions as the Certificate Registrar may
prescribe; provided that the Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment.
Section 3.3 Transfer and Exchange of Certificates
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations, representing
in the aggregate the same initial Certificate Balance, initial Notional Amount
or Percentage Interest, as the case may be, as the Certificate surrendered, upon
surrender of the Certificate to be exchanged at the offices of the Certificate
Registrar duly endorsed or accompanied by a written instrument of exchange duly
executed by such Holder or such Holder's duly authorized attorney in such form
as is satisfactory to the Certificate Registrar. Certificates delivered upon any
such exchange will evidence the same obligations, and will be entitled to the
same rights and privileges, as the Certificates surrendered. No service charge
shall be made to a Certificateholder for any exchange of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with a transfer of such Non-Registered
Certificate by the Depositor or one of its Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit D-1 hereto and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached either as Exhibit D-2A
hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer shall be made without
registration under the Securities Act, together with the written
certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, any Master Servicer, any Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such). If a transfer of
any interest in a Non-Registered Certificate that constitutes a Book-Entry
Certificate is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Certificates or a transfer
of any interest in such Non-Registered Certificate by the Depositor or any of
its Affiliates), then the Certificate Owner desiring to effect such transfer
shall be required to obtain either (i) a certificate from such Certificate
Owner's prospective Transferee substantially in the form attached as Exhibit
D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the
effect that such transfer may be made without registration under the Securities
Act. None of the Depositor, the Trustee, the Master Servicers, the Special
Servicers or the Certificate Registrar is obligated to register or qualify any
Class of Non-Registered Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of any Certificate. Any Certificateholder or Certificate
Owner desiring to effect a transfer of Non-Registered Certificates or interests
therein shall, and does hereby agree to, indemnify the Depositor, each
Underwriter, the Trustee, each Master Servicer, each Special Servicer and the
Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate, Class EI
Certificate or Residual Certificate or any interest therein shall be made (A) to
any retirement plan or other employee benefit plan or arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or Section 4975 of the Code or any
applicable federal, state or local law ("Similar Laws") materially similar to
the foregoing provisions of ERISA or the Code (each, a "Plan"), (B) in
book-entry form to an Institutional Accredited Investor who is not also a
Qualified Institutional Buyer or (C) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with "plan assets" of a Plan, unless: (i) in the case of a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate and
is being sold to a Qualified Institutional Buyer, the purchase and holding of
such Certificate or interest therein qualifies for the exemptive relief
available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or materially similar provisions of applicable federal, state or local
law or subject the Depositor, the Trustee, the Master Servicers, the Special
Servicers or the Certificate Registrar to any obligation in addition to those
undertaken in this Agreement. Each Person who acquires any Non-Investment Grade
Certificate, Class EI Certificate or Residual Certificate or interest therein
(unless it shall have acquired such Certificate or interest therein from the
Depositor or an Affiliate thereof or, in the case of a Non-Investment Grade
Certificate, unless it shall have delivered to the Certificate Registrar the
certification of facts and Opinion of Counsel referred to in clause (ii) of the
preceding sentence) shall be required to deliver to the Certificate Registrar
(or, in the case of an interest in a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that: (i) it is
neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan; or (ii) in the case of a Non-Investment
Grade Certificate, that the purchase and holding of such Certificate or interest
therein by such Person qualifies for the exemptive relief available under
Sections I and III of PTCE 95-60 or another exemption from the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor. No transfer of
a Class EI or Residual Certificate will be made to any Person that does not make
the representation in clause (i) of the preceding sentence.
(e) 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 (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United States Tax
Person and shall promptly notify the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a 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 and agreement substantially
in the form attached hereto as Exhibit E-1 (a "Transfer Affidavit and
Agreement") 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, that it is not
acquiring its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains
its Ownership Interest in a Residual Certificate, it will endeavor to remain
a Permitted Transferee, that it is a United States Tax Person, that it has
historically paid its debts as they have come due and will continue to do so
in the future, that it understands that its tax liability with respect to
the Residual Certificates may exceed cash flows thereon and it intends to
pay such taxes as they come due, that it will provide the Certificate
Registrar with all information necessary to determine that the applicable
paragraphs of Section 14 of such Transfer Affidavit and Agreement are true
or that Section 14 is not applicable, that it will not cause income with
respect to the Residual 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 United States Tax Person and
that it has reviewed the provisions of this Section 3.3(e) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee or is not a United States Tax Person, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a Residual
Certificate shall agree (1) to require a Transfer Affidavit and Agreement
from any prospective Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not to transfer its
Ownership Interest in such Residual Certificate unless it provides to the
Certificate Registrar a certificate substantially in the form attached
hereto as Exhibit E-2 among other things stating that (x) it has conducted a
reasonable investigation of the financial condition of the proposed
Transferee and, as a result of the investigation, the Transferor determines
that the proposed Transferee had historically paid its debts as they came
due and found no significant evidence that the proposed Transferee will not
continue to pay its debts as they come due in the future and, (y) it has no
actual knowledge that such prospective Transferee is not a Permitted
Transferee or is not a United States Tax Person.
(E) Each Person holding or acquiring an Ownership Interest in a Residual
Certificate that is a "pass-through interest holder" within the meaning of
temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or is holding an
Ownership Interest in a Residual Certificate on behalf of a "pass-through
interest holder," by purchasing an Ownership Interest in such Certificate,
agrees to give the Certificate Registrar written notice of its status as
such immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 3.3(e) or if any
Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Tax Person, then the last preceding Holder of
such Residual Certificate that was in compliance with the provisions of this
Section 3.3(e) shall be restored, to the extent permitted by law, to all
rights and obligations as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of the
Trustee, the Master Servicers, the Special Servicers or 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 3.3(e) 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.
(G) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 3.3(e), or if
any Holder of a Residual Certificate shall lose its status as a Permitted
Transferee or a United States Tax Person, and to the extent that the
retroactive restoration of the rights and obligations of the prior Holder of
such Residual Certificate as described in clause (F) above shall be invalid,
illegal or unenforceable, then the Trustee shall have the right, without
notice to the Holder or any prior Holder of such Residual Certificate, but
not the obligation, to sell or cause to be sold such Residual Certificate to
a purchaser selected by the Trustee on such terms as the Trustee may choose.
Such noncomplying Holder shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the Certificate
Registrar. Such purchaser may be the Certificate Registrar itself or any
Affiliate of the Certificate Registrar. The proceeds of such sale, net of
the commissions (which may include commissions payable to the Certificate
Registrar or its Affiliates), expenses and taxes due, if any, will be
remitted by the Certificate Registrar to such noncomplying Holder. The terms
and conditions of any sale under this clause (G) shall be determined in the
sole discretion of the Certificate Registrar, and the Certificate Registrar
shall not be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
The Trustee shall make available to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession
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 not a Permitted
Transferee, 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. The Person holding the Ownership Interest in a
Residual Certificate shall be responsible for the reasonable compensation of the
Trustee for providing such information. Each Master Servicer shall take all
reasonable action to cooperate with the Trustee in making such information
available.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Certificate Registrar, each Master Servicer, the Operating Adviser and the
Depositor the following:
(A) written notification from each Rating Agency to the effect that the
modification of, addition to or elimination of such provisions will not
cause such Rating Agency to qualify, downgrade or withdraw its then current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee, the Certificate Registrar and the Depositor, to the effect that
such modification of, addition to or elimination of such provisions will not
cause any REMIC Pool to (x) cease to qualify as a REMIC or (y) be subject to
an entity-level tax caused by the Transfer of any Residual Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the Transfer of a
Residual Certificate to a Person which is not a Permitted Transferee.
(f) None of the Master Servicers, the Special Servicers, the Trustee or
the Certificate Registrar shall have any liability to the Trust arising from a
transfer of any Certificate in reliance upon a certification, ruling or Opinion
of Counsel described in this Section 3.3; provided, however, that the
Certificate Registrar shall not register the transfer of a Residual Certificate
if it has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth in
Section 3.3(e); provided, further, that the Certificate Registrar shall not
register the transfer of a Noneconomic Residual Interest if it shall have
received notice that the Transferor has determined, as a result of the
investigation under Section 3.3(e)(D), that the proposed Transferee has not paid
its debts as they came due or that it will not pay its debts as they come due in
the future. The Certificate Registrar shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restriction on transfer
or exchange of Certificates or any interest therein imposed under this Article
III or under applicable law other than to require delivery of the certifications
and/or opinions described in this Article III; provided, however, that the
Certificate Registrar shall not register the transfer of a Residual Certificate
if it has actual knowledge that the proposed transferee does not meet the
qualifications of a permitted Holder of a Residual Certificate as set forth in
Section 3.3(e). The Certificate Registrar shall have no liability for transfers
(including without limitation transfers made through the book-entry facilities
of the Depository or between or among Participants or Certificate Owners) made
in violation of applicable restrictions, provided that the Certificate Registrar
has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicers, the
Special Servicers and the Depositor, upon written request, with an updated copy
of the Certificate Register within a reasonable period of time following receipt
of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates
If (A) 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 (B) except in the case of
a mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to 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 like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 3.5 Persons Deemed Owners
Prior to presentation of a Certificate for registration of transfer,
the Master Servicers, the Special Servicers, the Trustee, the Operating Adviser
and any agents of the Master Servicers, the Special Servicers, the Trustee or
the Operating Adviser may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and none of the Master Servicers, the Special
Servicers, the Trustee, the Operating Adviser or any agent of the Master
Servicers, the Special Servicers, the Trustee or the Operating Adviser shall be
affected by any notice to the contrary.
Section 3.6 Access to List of Certificateholders' Names and Addresses
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, any Master Servicer, any Special
Servicer, the Trustee, the Operating Adviser or the Depositor (A) request in
writing from the Certificate Registrar a list of the names and addresses of
Certificateholders and (B) in the case of a request by Certificateholders, state
that such Certificateholders desire to communicate with other Certificateholders
with respect to their rights under this Agreement or under the Certificates,
then the Certificate Registrar shall, within ten Business Days after the receipt
of such request, afford such Certificateholders, the Master Servicers, the
Special Servicers, the Depositor, the Trustee or the Operating Adviser, as
applicable, access during normal business hours to a current list of the
Certificateholders. The expense of providing any such information requested by
such Person shall be borne by the party requesting such information and shall
not be borne by the Certificate Registrar or the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 3.7 Book-Entry Certificates
(a) The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-J, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates, upon original issuance, each shall be issued in the form of one or
more Certificates representing the Book-Entry Certificates, to be delivered to
the Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor,
provided that any Non-Investment Grade Certificates sold to Institutional
Accredited Investors who are not Qualified Institutional Buyers will be issued
as Definitive Certificates. The Certificates shall initially be registered on
the Certificate Register in the name of Cede & Co., the nominee of the
Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicers, the Certificate Registrar and
the Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Certificates) as the authorized
representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Agreement, the provisions of this Section
3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall be
exercised only through the Clearing Agency and the applicable Participants
and shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and/or the Participants. Pursuant
to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates
sold to Institutional Accredited Investors shall be represented by the Rule 144A
IAI Global Certificate for such Class, which shall be deposited with the
Certificate Registrar, as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. The Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates initially sold to
Institutional Accredited Investors shall be represented by IAI Definitive
Certificates for such Class. The Certificates evidenced by any Rule 144A IAI
Global Certificate or IAI Definitive Certificate shall be subject to certain
restrictions on transfer as set forth in Section 3.3 hereof and shall bear
legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear or Clearstream; provided, however, that such
interests may be exchanged for interests in the Rule 144A IAI Global Certificate
for such Class in accordance with the certification requirements described in
Section 3.7(f). The Regulation S Permanent Global Certificates shall be
deposited with the Certificate Registrar, as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to promptly
deliver to the Certificate Registrar a certificate substantially in the form of
Exhibit I hereto to the effect that it has received the requisite Regulation S
Certificates for each such Class, and no Certificate Owner (or transferee from
any such Certificate Owner) shall be entitled to receive an interest in the
Regulation S Permanent Global Certificate for such Class or any payment or
principal or interest with respect to its interest in such Regulation S
Temporary Global Certificate prior to the Certificate Registrar receiving such
certification from Euroclear or Clearstream with respect to the portion of the
Regulation S Temporary Global Certificate owned by such Certificate Owner (and,
with respect to an interest in the applicable Regulation S Permanent Global
Certificate, prior to the Release Date). After the Release Date, distributions
due with respect to any beneficial interest in a Regulation S Temporary Global
Certificate shall not be made to the holders of such beneficial interests unless
exchange for a beneficial interest in the related Regulation S Permanent Global
Certificate is improperly withheld or refused. No interest in a Regulation S
Global Certificate may be held by or transferred to a U.S. Person (as defined in
Regulation S) except for exchanges for a beneficial interest in the Rule 144A
IAI Global Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section 3.9,
owners of beneficial interests in Global Certificates shall not be entitled to
receive physical delivery of Definitive Certificates. The Certificates are not
issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of
a Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee and the Certificate Registrar shall not be affected by any notice to
the contrary. Except under the circumstance described in Section 3.9, owners of
beneficial interests in a Global Certificate will not be entitled to have any
portions of such Global Certificate registered in their names, will not receive
or be entitled to receive physical delivery of Definitive Certificates in
certificated form and shall not be considered the owners or holders of the
Global Certificate (or any Certificates represented thereby) under this
Agreement or the Certificates. In addition, no Certificate Owner of an interest
in a Global Certificate shall be able to transfer that interest except in
accordance with the Depository's applicable procedures (in addition to those
under this Agreement and, if applicable, those of Euroclear and Clearstream).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached hereto),
to exchange all or a portion of such interest (in authorized denominations as
set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A IAI
Global Certificate for such Class in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in such Rule 144A
IAI Global Certificate as described herein; provided, however, that no Exchange
Certification shall be required if any such exchange occurs after the Release
Date. Any holder of an interest in the Rule 144A IAI Global Certificate shall
have the right, upon prior written notice to the Certificate Registrar, the
Depository and Euroclear or Clearstream, as applicable, in the form of an
Exchange Certification, to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Regulation S Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Regulation S Global Certificate as described herein;
provided, however, that if such exchange occurs prior to the Release Date, the
transferee shall acquire an interest in a Regulation S Temporary Global
Certificate only and shall be subject to all of the restrictions associated
therewith described in Section 3.7(d). Following receipt of any Exchange
Certification or request for transfer, as applicable, by the Certificate
Registrar: (i) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates being exchanged
to reduce the stated principal amount of such Global Certificate by the
denominations of the Certificate or Certificates for which such exchange is to
be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
Section 3.8 Notices to Clearing Agency
Whenever notice or other communication to the Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to the related Certificateholders pursuant to Section 3.9, the
Trustee shall give all such notices and communications specified herein to be
given to Holders of the Book-Entry Certificates to the Clearing Agency which
shall give such notices and communications to the related Participants in
accordance with its applicable rules, regulations and procedures.
Section 3.9 Definitive Certificates
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate or their nominees if (i) the Clearing Agency
notifies the Depositor and the Certificate Registrar in writing that the
Clearing Agency is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Clearing Agency through the Participants in writing (and the Clearing
Agency so advises the Depositor, the Certificate Registrar and the Master
Servicers in writing) that the continuation in global form of the Certificates
being evidenced by such Global Certificate is no longer in their best interests;
provided that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Clearing Agency and request the Clearing
Agency to notify all Certificate Owners, through the applicable Participants, of
the occurrence of the event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Global Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates. None of the
Depositor, the Trustee or 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, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar and the Trustee
shall recognize the Holders of Definitive Certificates as Certificateholders
hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Trustee directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein by
the General Master Servicer (with respect to the Mortgage Loans other than NCB,
FSB Loans and, in respect of the Servicing Advances, other than the Non-Trust
Serviced Loan Group) and the NCB Master Servicer (with respect to the NCB, FSB
Loans) and, if the applicable Master Servicer does not make such Advances, by
the Trustee, except to the extent that the applicable Master Servicer or the
Trustee determines in accordance with Section 4.4 below, that any such Advance
would be a Nonrecoverable Advance.
Section 4.1 P&I Advances by the Master Servicers
(a) The applicable Master Servicer shall make a P&I Advance in respect
of each Mortgage Loan of the P&I Advance Amount (if greater than zero) on the
Master Servicer Remittance Date. It is understood that the obligation of each
Master Servicer to make such P&I Advances is mandatory and shall apply through
any court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy. Notwithstanding the
foregoing, the applicable Master Servicer shall not be required to make such P&I
Advance, if such Master Servicer determines, in accordance with Section 4.4
below, that any such P&I Advance would be a Nonrecoverable Advance and shall not
make such P&I Advance if such P&I Advance, if made, would be a Nonrecoverable
Advance as determined by the applicable Special Servicer in accordance with the
Servicing Standard and the Special Servicer has notified the Master Servicer of
such determination not later than 10:00 a.m. (and on a Business Day) on the date
prior to the date on which the Master Servicer would be required to make such
P&I Advance in the absence of a recoverability determination. Such determination
shall be conclusive and binding on the Trustee and the Certificateholders. The
applicable Master Servicer and the Trustee shall not advance default interest,
Balloon Payments, Prepayment Premiums or any principal and interest payments in
respect of the Non-Trust Serviced Companion Loan.
(b) If a Master Servicer determines that there is a P&I Advance Amount
with respect to its applicable Mortgage Loans for a Distribution Date, such
Master Servicer shall on the Master Servicer Remittance Date either (A) deposit
in the applicable Certificate Account an amount equal to the P&I Advance Amount
or (B) utilize funds in such Certificate Account being held for future
distributions or withdrawals to make such Advance. Any funds being held in a
Certificate Account for future distribution or withdrawal and so used shall be
replaced by the applicable Master Servicer from its own funds by deposit in such
Certificate Account on or before any future Master Servicer Remittance Date to
the extent that funds in such Certificate Account on such Master Servicer
Remittance Date shall be less than payments to the Trustee or other Persons
required to be made on such date.
Section 4.1A P&I Advances with Respect to the Non-Trust Serviced Pari
Passu Loan
With respect to the Non-Trust Serviced Pari Passu Loan, the General
Master Servicer shall make its determination that it has made a P&I Advance on
the Non-Trust Serviced Pari Passu Loan that is a Nonrecoverable Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable Advance
with respect to the Non-Trust Serviced Pari Passu Loan, and the General Special
Servicer shall make its determination in accordance with the Servicing Standard
that such P&I Advance, if made, would constitute a Nonrecoverable Advance, both
determinations to be made in accordance with Section 4.1, including with regard
to any notices required to be delivered to the General Master Servicer by the
General Special Servicer. Both such determinations shall be made independently
of any determination made by the 2007-HQ11 Master Servicer under the 2007-HQ11
Pooling and Servicing Agreement in respect of the Non-Trust Serviced Companion
Loan, and the 2007-HQ11 Master Servicer shall make its own determination that it
has made a P&I Advance that is a Nonrecoverable Advance (as defined in the
2007-HQ11 Pooling and Servicing Agreement) or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable Advance (as defined in the 2007-HQ11
Pooling and Servicing Agreement) with respect to the Non-Trust Serviced
Companion Loan included in such Loan Group in accordance with the 2007-HQ11
Pooling and Servicing Agreement. The determination by the General Master
Servicer, the 2007-HQ11 Master Servicer or the General Special Servicer, as
applicable, that any such P&I Advance is nonrecoverable shall be binding on the
2007-HQ11 Master Servicer and the General Master Servicer, as applicable, the
Certificateholders and the holders of any securities relating to the Non-Trust
Serviced Companion Loan unless the Trustee or the General Master Servicer, as
the case may be, has been advised by the 2007-HQ11 Trustee or the 2007-Master
Servicer that the party who made such nonrecoverability determination no longer
has the required rating under the 2007-HQ11 Pooling and Servicing Agreement.
If the General Master Servicer determines that a proposed P&I Advance,
if made, would be, or any outstanding P&I Advance previously made is, as
applicable, a Nonrecoverable Advance, the General Master Servicer shall provide
the 2007-HQ11 Master Servicer written notice of such determination within one
Business Day of the date of such determination. If the General Master Servicer
receives written notice by the 2007-HQ11 Master Servicer that it has determined,
with respect to the Non-Trust Serviced Companion Loan, that any proposed P&I
Advance would be, or any outstanding P&I Advance is, a Nonrecoverable Advance,
then such determination shall be binding on the Certificateholders and none of
the General Master Servicer or the Trustee shall make any additional P&I
Advances with respect to the Non-Trust Serviced Pari Passu Loan unless the
General Master Servicer has consulted with the 2007-HQ11 Master Servicer and
they agree that circumstances with respect to such Loan Group have changed such
that a proposed future P&I Advance would not be a Nonrecoverable Advance.
Notwithstanding the foregoing, the General Master Servicer shall
continue to have the discretion provided in this Agreement to determine that any
future P&I Advance or outstanding P&I Advance would be, or is, as applicable, a
Nonrecoverable Advance. Once such a determination is made by the General Master
Servicer or the General Master Servicer receives written notice of such
determination by the 2007-HQ11 Master Servicer, none of the General Master
Servicer or the Trustee shall make any additional P&I Advances with respect to
the Non-Trust Serviced Pari Passu Loan until the General Master Servicer has
followed the process set forth in this Section 4.1A.
Section 4.2 Servicing Advances
The applicable Master Servicer and, if such Master Servicer does not,
the Trustee to the extent the Trustee receives written notice from such Master
Servicer that such Advance has not been made by such Master Servicer, shall make
Servicing Advances within 5 Business Days after the determination that such
Servicing Advance is necessary (and, in the case of the Trustee, within 6
Business Days after receipt of such notice (i.e., 5 Business Days after receipt
of such notice and one additional Business Day after the delivery of notice to
the applicable Master Servicer, pursuant to Section 4.3(b) hereof, that such
Master Servicer has not made the required Servicing Advance) or, with respect to
such Master Servicer or the Trustee, such shorter period, as may be required to
avoid a foreclosure of liens for delinquent real estate taxes or a lapse in
insurance coverage, to the extent provided in this Agreement, except to the
extent that such Master Servicer or the Trustee, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance. If such Master Servicer or the Trustee, as applicable,
determines that such advance would constitute a Nonrecoverable Advance, then
such party shall promptly deliver notice of such determination to the applicable
Special Servicer. Upon receipt of such notice, the applicable Special Servicer
shall determine (with the reasonable assistance of such Master Servicer or the
Trustee, as applicable) whether the payment of such amount is (i) necessary to
preserve the related Mortgaged Property and (ii) would be in the best interest
of the Certificateholders. If such Special Servicer shall determine that the
payment of such amount is (i) necessary to preserve the related Mortgaged
Property and (ii) would be in the best interest of the Certificateholders, then
such Special Servicer shall promptly direct such Master Servicer or the Trustee,
as applicable, in writing to make such payment and such party shall make such
payment from amounts in the Certificate Account within the time periods set
forth herein. Such determination by such Master Servicer or such Special
Servicer shall be conclusive and binding on the Trustee and the
Certificateholders. The applicable Special Servicer shall not be required to
make Servicing Advances under this Agreement, but may make such Servicing
Advances, on an emergency basis, at its option in which event the applicable
Master Servicer shall reimburse such Special Servicer within 1 Business Day of
receipt of a statement therefor sent to the applicable Master Servicer. The
applicable Special Servicer promptly shall notify the applicable Master Servicer
that a Servicing Advance is required in connection with a Specially Serviced
Mortgage Loan or REO Property, and such Master Servicer shall make such
Servicing Advance within 5 Business Days of receipt of such notice (or such
shorter period as may be required to avoid a foreclosure of liens for delinquent
real estate taxes or a lapse in insurance coverage). In addition, such Special
Servicer shall provide the applicable Master Servicer or the Trustee with such
information in its possession as the applicable Master Servicer or the Trustee
may reasonably request to enable such Master Servicer or the Trustee, as
applicable, to determine whether a requested Servicing Advance would constitute
a Nonrecoverable Advance. Any request by a Special Servicer that a Master
Servicer make a Servicing Advance shall be deemed to be a determination by such
Special Servicer that such requested Servicing Advance is not a Nonrecoverable
Advance and such Master Servicer shall be entitled to conclusively rely on such
determination; provided, that the determination shall not be binding on any
Master Servicer or the Trustee. The applicable Master Servicer or Special
Servicer may update or change its recoverability determinations at any time (but
not reverse the other Master Servicer or Special Servicer's determination that
an Advance is a Nonrecoverable Advance). Promptly after discovering that such
applicable Master Servicer has failed to make a Servicing Advance that such
Master Servicer is required to make hereunder, the Trustee shall promptly notify
the Trustee in writing of the failure by such Master Servicer to make such
Servicing Advance.
The 2007-HQ11 Master Servicer is obligated to make Servicing Advances
(as defined in the 2007-HQ11 Pooling and Servicing Agreement) pursuant to the
2007-HQ11 Pooling and Servicing Agreement with respect to the Non-Trust-Serviced
Pari Passu Loan, and no party to this Agreement shall have any obligation, and
shall not be entitled, to make any Servicing Advances with respect to the
Non-Trust-Serviced Pari Passu Loan.
Section 4.3 Advances by the Trustee
(a) To the extent that a Master Servicer fails to make a P&I Advance by
the Master Servicer Remittance Date (other than a P&I Advance that such Master
Servicer determines is a Nonrecoverable Advance), the Trustee shall make such
P&I Advance to the extent the Trustee receives written notice from such Master
Servicer not later than 10:00 a.m. (New York City time) on the Distribution Date
that such Advance has not been made by the applicable Master Servicer on the
Master Servicer Remittance Date unless the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance (or with respect to the
Non-Trust Serviced Pari Passu Loan, the 2007-HQ11 Master Servicer makes a
nonrecoverability determination as described in Section 4.1A). To the extent the
Trustee is required hereunder to make P&I Advances on the Mortgage Loans, it
shall deposit the amount thereof in the Distribution Account by 1:00 p.m. (New
York City time) on the related Distribution Date. The applicable Master Servicer
shall notify the Trustee in writing as soon as practicable, but not later than
10:00 a.m. (New York City time) on the Distribution Date if such Master Servicer
has failed to make a P&I Advance.
(b) To the extent that a Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that such Master Servicer or the applicable Special Servicer
determines is a Nonrecoverable Advance), and a Responsible Officer of the
Trustee receives notice thereof, the Trustee shall notify such Master Servicer
of such failure and the Trustee shall make such Servicing Advance promptly, but
in any event, not later than six Business Days after notice thereof in
accordance with Section 4.2 (i.e., 5 Business Days after receipt of notice by
the Trustee pursuant to Section 4.2 that such Servicing Advance is required to
be made by the applicable Master Servicer, and one additional Business Day after
the delivery of notice to the applicable Master Servicer, as set forth above,
that such Master Servicer has not made the required Servicing Advance) (or such
shorter period as may be required to avoid a foreclosure of liens for delinquent
real estate taxes or a lapse in insurance coverage), unless the Trustee
determines that such Servicing Advance, if made, would be a Nonrecoverable
Advance. If the Trustee determines that such advance would constitute a
Nonrecoverable Advance, then the Trustee shall deliver notice of such
determination to the applicable Special Servicer. Upon receipt of such notice,
the applicable Special Servicer shall determine (with the reasonable assistance
of the Trustee) whether the payment of such amount is (i) necessary to preserve
the related Mortgaged Property and (ii) would be in the best interest of the
Certificateholders. If such Special Servicer shall determine that the payment of
such amount is (i) necessary to preserve the related Mortgaged Property and (ii)
would be in the best interest of the Certificateholders, then such Special
Servicer shall promptly direct the Trustee in writing to make such payment and
the Trustee shall make such payment within five Business Days after receipt of
such notice (or such shorter period as may be required to avoid a foreclosure of
liens for delinquent real estate taxes or a lapse in insurance coverage) from
amounts in the Distribution Account.
Section 4.4 Evidence of Nonrecoverability
(a) If a Master Servicer or the applicable Special Servicer determines
at any time, in its sole discretion, exercised in accordance with the Servicing
Standard, that any Advance previously made (or Unliquidated Advance in respect
thereof) or any proposed Advance, if made, would constitute a Nonrecoverable
Advance, such determination shall be evidenced by an Officer's Certificate
delivered to the Trustee, the applicable Master Servicer or the applicable
Special Servicer, the Operating Adviser and the Rating Agencies promptly upon
making such determination, but in no event later than the Business Day following
the date of such determination. Such Officer's Certificate shall set forth the
reasons for such determination of nonrecoverability, together with, to the
extent such information, report or document is in the applicable Master
Servicer's or applicable Special Servicer's possession, any related financial
information such as related income and expense statements, rent rolls (with
respect to mortgaged properties other than residential cooperative properties),
occupancy status, property inspections and any Appraisals performed within the
last 12 months on the Mortgaged Property, and, if such reports are used by the
applicable Master Servicer or the applicable Special Servicer to determine that
any P&I Advance or Servicing Advance, as applicable, would be a Nonrecoverable
Advance, any engineers' reports, environmental surveys, internal final
valuations or other information relevant thereto which support such
determination. If the Trustee determines at any time, in its sole discretion,
exercised in good faith, that any portion of an Advance previously made or a
portion of a proposed Advance that the Trustee is required to make pursuant to
this Agreement, if made, would constitute a Nonrecoverable Advance, such
determination shall be evidenced by an Officer's Certificate of a Responsible
Officer of the Trustee, delivered to the Depositor, the applicable Master
Servicer, the applicable Special Servicer and the Operating Adviser similar to
the Officer's Certificate of a Master Servicer or a Special Servicer described
in the prior sentence. The Trustee shall not be required to make an Advance that
the applicable Master Servicer or the applicable Special Servicer has previously
determined to be a Nonrecoverable Advance. Notwithstanding any other provision
of this Agreement, none of the Master Servicers, the Special Servicers or the
Trustee shall be obligated to, nor shall it, make any Advance or make any
payment that is designated in this Agreement to be an Advance, if the Trustee
determines in its good faith business judgment and, with respect to the
applicable Master Servicer or the applicable Special Servicer, in accordance
with the Servicing Standard, that such Advance or such payment (including
interest accrued thereon at the Advance Rate) would be a Nonrecoverable Advance.
Absent bad faith, the applicable Master Servicer's determination as to the
nonrecoverability of any Advance shall be conclusive and binding on the
Certificateholders and may, in all cases, be relied on by the Trustee; provided,
however, that the applicable Special Servicer may, at its option, make a
determination in accordance with the Servicing Standard that any P&I Advance or
Servicing Advance, if made, would be a Nonrecoverable Advance and shall deliver
to the Master Servicer and the Trustee notice of such determination; provided,
further, however, the applicable Special Servicer shall have no right to make an
affirmative determination that any P&I Advance is or would be recoverable and,
in the absence of a determination by the applicable Special Servicer that such
Advance is or would be a Nonrecoverable Advance, the decision that a P&I Advance
is recoverable shall remain with the applicable Master Servicer or Trustee, as
applicable. Absent bad faith, such determination by the applicable Special
Servicer shall be conclusive and binding on the Certificateholders, the Master
Servicers and the Trustee. Absent bad faith or breach of the servicing standard
under the 2007-HQ11 Pooling and Servicing Agreement known to the General Master
Servicer or the Trustee, as applicable, the determination as to the
nonrecoverability of any principal and interest advance made or proposed to be
made with respect to the Non-Trust-Serviced Companion Loan pursuant to the
2007-HQ11 Pooling and Servicing Agreement, shall be conclusive and binding on
the Certificateholders and may, in all cases, be relied on by the Trustee and
the General Master Servicer unless the Trustee or the General Master Servicer,
as the case may be, has been advised by the 2007-HQ11 Trustee or the 2007-Master
Servicer that the party who made such nonrecoverability determination no longer
has the required rating under the 2007-HQ11 Pooling and Servicing Agreement. The
applicable Master Servicer shall consider Unliquidated Advances in respect of
prior P&I Advances and Servicing Advances as outstanding Advances for purposes
of nonrecoverability determinations as if such Unliquidated Advance were a P&I
Advance or Servicing Advance, as applicable.
(b) With respect to the Non-Trust-Serviced Pari Passu Loan, the
2007-HQ11 Master Servicer, the 2007-HQ11 Special Servicer and the 2007-HQ11
Trustee, as applicable, shall be entitled to reimbursement for Pari Passu Loan
Nonrecoverable Advances with respect to the Non-Trust Serviced Pari Passu Loan
serviced by the 2007-HQ11 Master Servicer or the 2007-HQ11 Special Servicer
(with, in each case, any accrued and unpaid interest thereon provided for under
the 2007-HQ11 Pooling and Servicing Agreement) in the manner set forth in
Section 5.2(a) Subsection (I)(ii) and 5.2(a) Subsection (I)(iii).
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan
Any unreimbursed Advance funded from each Master Servicer's, each
Special Servicer's or the Trustee's own funds shall accrue interest on a daily
basis, at a per annum rate equal to the Advance Rate, from and including the
date such Advance was made to but not including the date on which such Advance
has been reimbursed; provided, however, that neither the Master Servicers nor
any other party shall be entitled to interest accrued on the amount of any P&I
Advance with respect to any Mortgage Loan for the period commencing on the date
of such P&I Advance and ending on the day on which the grace period applicable
to the related Mortgagor's obligation to make the related Scheduled Payment
expires pursuant to the related Mortgage Loan documents but shall be entitled to
interest on such Advance at the Advance Rate to the extent the Scheduled Payment
remains outstanding beyond the expiration of the grace period. In addition, no
Master Servicer shall be entitled to interest on any particular P&I Advance (or
portion thereof) made thereby to the extent a payment (or portion thereof) is
received but is being held by or on behalf of such Master Servicer in connection
with any dispute, claim or offset. For purposes of determining whether a P&I
Advance is outstanding, amounts collected with respect to a particular Mortgage
Loan or a particular REO Property and treated as collections of principal or
interest shall be applied first to reimburse the earliest P&I Advance and then
each succeeding P&I Advance to the extent not inconsistent with Section 4.6. The
applicable Master Servicer shall use efforts consistent with the Servicing
Standard to collect (but shall have no further obligation to collect), with
respect to the Mortgage Loans that are not Specially Serviced Mortgage Loans,
Late Fees and default interest from the Mortgagor in an amount sufficient to pay
Advance Interest incurred and unpaid with respect to such Mortgage Loan arising
on or after the Cut-Off Date. The applicable Master Servicer shall be entitled
to retain Late Fees and default interest paid by any Mortgagor during a
Collection Period with respect to any Mortgage Loan (other than the portion of
such Late Fees and default interest that relates to the period commencing after
the Servicing Transfer Event in respect of a Specially Serviced Mortgage Loan,
as to which the applicable Special Servicer shall retain Late Fees and default
interest with respect to such Specially Serviced Mortgage Loan, subject to the
offsets set forth below) as additional servicing compensation only to the extent
such Late Fees and default interest with respect to such Mortgage Loan exceed
unreimbursed Advance Interest with respect to such Mortgage Loan arising on or
after the Cut-Off Date. The applicable Special Servicer, with respect to any
Specially Serviced Mortgage Loan, shall (i) pay from any Late Fees and default
interest collected from such Specially Serviced Mortgage Loan (a) any
outstanding and unpaid Advance Interest payable with respect to such Specially
Serviced Mortgage Loan to the applicable Master Servicer, the applicable Special
Servicer or the Trustee, as applicable, and (b) to the Trust, any losses
previously incurred by the Trust with respect to such Specially Serviced
Mortgage Loan (other than the related Special Servicing Fees) and (ii) retain
any remaining portion of such Late Fees and default interest as additional
Special Servicer Compensation. It is hereby acknowledged that the applicable
Master Servicer may only waive Late Fees and default interest to the extent set
forth in Section 8.3(a).
Section 4.6 Reimbursement of Advances and Advance Interest
(a) Advances made with respect to each Mortgage Loan, each Specially
Serviced Mortgage Loan or each REO Property (including Advances later determined
to be Nonrecoverable Advances) and Advance Interest thereon shall be reimbursed
to the extent of the amounts identified to be applied therefor in Section 5.2.
The aggregate of the amounts available to repay Advances and Advance Interest
thereon pursuant to Section 5.2 collected in any Collection Period with respect
to Mortgage Loans, Specially Serviced Mortgage Loans or REO Property shall be an
"Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage Loans,
any Specially Serviced Mortgage Loans or any REO Mortgage Loans, the Available
Advance Reimbursement Amount with respect to any Determination Date shall be
applied to reimburse (i) the Trustee for any Advances outstanding to the Trustee
with respect to any of such Mortgage Loans, any of such Specially Serviced
Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to the
Trustee with respect to such Advances and then (ii) the applicable Master
Servicer and Special Servicer for any Advances outstanding to such Master
Servicer or the applicable Special Servicer, as the case may be, with respect to
any of such Mortgage Loans, any of such Specially Serviced Mortgage Loans or REO
Mortgage Loans, plus any Advance Interest owed to the applicable Master Servicer
or applicable Special Servicer with respect to such Advances. To the extent that
any Advance Interest payable to the applicable Master Servicer, the applicable
Special Servicer or the Trustee with respect to a Specially Serviced Mortgage
Loan or REO Mortgage Loan cannot be recovered from the related Mortgagor, the
amount of such Advance Interest shall be payable to the Trustee, the applicable
Master Servicer or the applicable Special Servicer, as the case may be, from
amounts on deposit in the applicable Certificate Account (or sub-account
thereof) (or, if not available from such Certificate Account, the other
Certificate Account) or the Distribution Account pursuant to Section 5.2(a) or
Section 5.3(b)(ii), to the extent of amounts identified to be applied
thereunder. The Master Servicers', the Special Servicers' and the Trustee's
right of reimbursement under this Agreement for Advances and interest thereon
shall be prior to the rights of the Certificateholders to receive any amounts
recovered with respect to such Mortgage Loans or REO Mortgage Loans.
(c) Advance Interest arising on or after the Cut-Off Date and not
previously paid with respect to any Mortgage Loan will be paid to the Trustee,
the applicable Special Servicer and/or the applicable Master Servicer (in
accordance with the priorities specified in the preceding paragraph) first, from
Late Fees and default interest collected with respect to such Mortgage Loan
during the Collection Period, and then from Excess Liquidation Proceeds then
available prior to payment from any other amounts. Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees and
default interest with respect to a Mortgage Loan will be offset against the
Advance Interest incurred and unpaid with respect to such Mortgage Loan arising
on or after the Cut-Off Date).
(d) To the extent that a Special Servicer incurs out-of-pocket expenses
(other than the Servicing Advances pursuant to Section 4.2), in accordance with
the Servicing Standard, in connection with servicing Specially Serviced Mortgage
Loans, the applicable Master Servicer shall, subject to Section 4.4, reimburse
such Special Servicer for such expenditures on the next succeeding Master
Servicer Remittance Date, provided such Special Servicer has delivered, on or
before the related Determination Date, an invoice and a report substantiating
such expenses from such Special Servicer requesting such reimbursement. All such
amounts paid by a Special Servicer and reimbursed by the applicable Master
Servicer shall be a Servicing Advance. In the event that the applicable Master
Servicer fails to reimburse such Special Servicer hereunder or the applicable
Master Servicer determines that such Servicing Advance was or, if made, would be
a Nonrecoverable Advance and the applicable Master Servicer does not make such
payment, such Special Servicer shall notify the applicable Master Servicer and
the Trustee in writing of such nonpayment and the amount payable to such Special
Servicer and shall be entitled to receive reimbursement from the Trust as an
Additional Trust Expense. The applicable Master Servicer and the Trustee shall
have no obligation to verify the amount payable to such Special Servicer
pursuant to this Section 4.6(d) and circumstances surrounding the notice
delivered by such Special Servicer pursuant to this Section 4.6(d).
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections
(a) On or prior to the Closing Date, each Master Servicer shall open,
or cause to be opened, and shall thereafter maintain, or cause to be maintained,
a separate account or accounts, which accounts must be Eligible Accounts, in the
name of "Xxxxx Fargo Bank, as General Master Servicer for U.S. Bank National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13" and "NCB, FSB,
as NCB Master Servicer for U.S. Bank National Association, as Trustee for the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13" (collectively, or individually, as the case may
be, the "Certificate Account"). The General Master Servicer shall maintain the
Certificate Account with respect to all of the Mortgage Loans (other than the
NCB, FSB Loans) and the NCB Master Servicer shall maintain the Certificate
Account with respect to the NCB, FSB Loans. On or prior to the Closing Date, in
respect of the Interest Reserve Loans, the Trustee shall open, or cause to be
opened, and shall maintain, or cause to be maintained an additional separate
account or accounts in the name of "U.S. Bank National Association, as Trustee,
in trust for the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13" (the "Interest Reserve Account").
The Trustee shall maintain the Interest Reserve Accounts with respect to
non-NCB, FSB Loans and the Trustee shall maintain the Interest Reserve Accounts
with respect to the NCB, FSB Loans.
(b) On or prior to the date a Master Servicer shall initially deposit
funds in a Certificate Account, such Master Servicer shall give to the Trustee
prior written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicers shall take such actions as are necessary to cause any
depository institution holding a Certificate Account to hold such accounts in
the name of the applicable Master Servicer as provided in Section 5.1(a),
subject to such Master Servicer's (or its Primary Servicer's or its
Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) The applicable Master Servicer shall deposit, or cause to be
deposited, into its Certificate Account on the Business Day following receipt,
the following amounts received by it (including amounts remitted to such Master
Servicer by the applicable Special Servicer from the applicable REO Account
pursuant to Section 9.14 and amounts received from the Primary Servicers or
Sub-Servicers), other than amounts received by it in respect of interest and
principal on the Mortgage Loans due on or before the Cut-Off Date which shall be
remitted to the applicable Seller (provided that such Master Servicer (I) may
retain amounts otherwise payable to such Master Servicer as provided in Section
5.2(a) rather than deposit them into such Certificate Account, (II) shall,
rather than deposit them in the Certificate Account, directly remit to the
Primary Servicers the applicable Primary Servicing Fees payable as provided in
Section 5.2(a)(iv) (unless already retained by the applicable Primary Servicer),
and (III) shall, rather than deposit them in a Certificate Account, directly
remit the Excess Servicing Fees to the holders thereof as provided in Section
5.2(a)(iv) (unless already retained by the applicable holder of the excess
servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments,
and any Late Collections in respect thereof, on the Mortgage Loans;
(B) Interest: all payments on account of interest on the
Mortgage Loans (including Excess Interest, which shall be payable only
to the Class EI Certificateholders, in each case as provided herein,
and excluding Interest Reserve Amounts to be deposited in the
applicable Interest Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor in
accordance with the Servicing Standard, which proceeds shall be
deposited by such Master Servicer into the applicable Escrow Account
and not deposited in the Certificate Accounts;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the related
Mortgagor in accordance with the Servicing Standard, which proceeds
shall be deposited by such Master Servicer into the applicable Escrow
Account and not deposited in the Certificate Accounts;
(F) REO Income: all REO Income received from the applicable
Special Servicer;
(G) Investment Losses: any amounts required to be deposited by
such Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held in
the Certificate Accounts and amounts required to be deposited by the
applicable Special Servicer pursuant to Section 9.14(b) in connection
with losses realized on Eligible Investments with respect to funds held
in the REO Accounts;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Compensating Interest: all Compensating Interest received
with respect to the Mortgage Loans; and
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Accounts pursuant to this
Agreement, including, but not limited to, Purchase Proceeds of any
Mortgage Loans repurchased by a Seller or the maker of a representation
and warranty with respect to any Mortgage Loan or substitution
shortfall amounts (as described in the ninth paragraph of Section
2.3(a)) paid by a Seller in connection with the substitution of any
Qualifying Substitute Mortgage Loans, any payments or recoveries in
respect of Unliquidated Advances or in respect of Nonrecoverable
Advances paid from principal collections on the Mortgage Loans pursuant
to Section 5.2(a)(II).
Remittances from any REO Accounts to the applicable Master Servicer for
deposit in the applicable Certificate Accounts shall be made by the applicable
Special Servicer no later than the Special Servicer Remittance Date.
(d) The Trustee, with respect to each Distribution Date occurring in
January (other than in any leap year) and February of each year (unless such
Distribution Date is the Final Distribution Date), shall deposit in the
applicable Interest Reserve Account in respect of each related Interest Reserve
Loan, an amount equal to one day's interest at the related REMIC I Net Mortgage
Rate, as applicable (without regard to the provisos in the definition of
Adjusted Mortgage Rate), on the Scheduled Principal Balance of such Mortgage
Loan as of the Due Date in the month in which such Distribution Date occurs, to
the extent a Scheduled Payment or P&I Advance is timely made in respect thereof
for such Due Date (all amounts so deposited in any consecutive January and
February in respect of each Interest Reserve Loan, the "Interest Reserve
Amount").
(e) Funds in the Certificate Accounts and Interest Reserve Accounts may
be invested and, if invested, shall be invested by, and at the risk of, the
Master Servicer in Eligible Investments selected by such Master Servicer which
shall mature, unless payable on demand, not later than the Business Day
immediately preceding the next Master Servicer Remittance Date, and any such
Eligible Investment shall not be sold or disposed of prior to its maturity
unless payable on demand. All such Eligible Investments shall be made in the
name of "U.S. Bank National Association, as Trustee for the Holders of the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13." None of the Depositor, the Mortgagors or the Trustee shall be
liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the applicable Master Servicer as additional
servicing compensation and shall be subject to its withdrawal at any time from
time to time. The amount of any losses incurred in respect of any such
investments shall be for the account of the applicable Master Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the applicable Certificate Account or applicable Interest
Reserve Account, as the case may be, out of its own funds immediately as
realized. No Master Servicer shall be liable for any losses incurred in respect
of any account which is not controlled by such Master Servicer or any losses
with respect to a default on an Eligible Investment. If the applicable Master
Servicer deposits in or transfers to any Certificate Account or any Interest
Reserve Account, as the case may be, any amount not required to be deposited
therein or transferred thereto, it may at any time withdraw such amount or
retransfer such amount from such Certificate Account or Interest Reserve
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Trustee may take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings; provided, however, that if a Master Servicer shall have
deposited in the applicable Certificate Account or Interest Reserve Account, as
the case may be, an amount equal to all amounts due under any such Eligible
Investment (net of anticipated income or earnings thereon that would have been
payable to such Master Servicer as additional servicing compensation) such
Master Servicer shall have the sole right to enforce such payment or
performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the applicable Master Servicer of amounts to be used for payment of
Escrow Amounts for the account of the Mortgagor. The applicable Master Servicer
shall deal with these amounts in accordance with the Servicing Standard, the
terms of the related Mortgage Loans and Section 8.3(e) hereof, and the Primary
Servicers will hold any Escrow Accounts relating to the Mortgage Loans that they
service in accordance with the requirements set forth in Section 8.3(e). No
Master Servicer shall release any Escrow Amounts held for "earn-outs" or
performance criteria listed on Schedule XI hereof, without the prior consent of
the Operating Adviser, which consent shall not be unreasonably withheld or
delayed. Within 20 days following the first anniversary of the Closing Date, the
applicable Master Servicer shall deliver to the Trustee and the Operating
Adviser, for each Mortgage Loan set forth on Schedule VIII hereto, a brief
statement as to the status of the work or project based on the most recent
information provided by the related Mortgagor. Schedule VIII sets forth those
Mortgage Loans as to which an upfront reserve was collected at the closing of
such Mortgage Loan (and still exists) in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the applicable Master
Servicer and the applicable Special Servicer (which shall itself consult with
the Operating Adviser) will consult with each other as to whether there exists a
material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XII, as to
which the Scheduled Payment is due in a calendar month on a Due Date (including
any grace period) that may occur after the end of the Collection Period ending
in such calendar month, subject to Section 4.4, the applicable Master Servicer
shall, unless the Scheduled Payment is received before the end of the Collection
Period, make a P&I Advance by deposit to the Certificate Account on the Master
Servicer Remittance Date in an amount equal to the Scheduled Payment or the
Assumed Scheduled Payment, as applicable, and for purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," such
Scheduled Payment or Assumed Scheduled Payment, as applicable, shall be deemed
to have been received in such Collection Period. With respect to the
Non-Trust-Serviced Pari Passu Loan, any amounts received by the General Master
Servicer pursuant to the 2007-HQ11 Pooling and Servicing Agreement with respect
to a Distribution Date shall be deemed to have been received by the General
Master Servicer in the related Collection Period for purposes of the definition
of "Available Distribution Amount" and "Principal Distribution Amount."
Section 5.2 Application of Funds in the Certificate Accounts and
Interest Reserve Accounts
(a) Subsection (I). Each Master Servicer shall, from time to time, make
withdrawals from the applicable Certificate Accounts and remit them by wire
transfer prior to 2:00 p.m., New York City time, on the related Master Servicer
Remittance Date, in immediately available funds to the account specified in this
Section or otherwise (x) to such account as each shall determine from time to
time of amounts payable to the applicable Master Servicer from the applicable
Certificate Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and
(ix) below; (y) to the account specified in writing by the Trustee from time to
time of amounts payable to the Trustee from the applicable Certificate Account
pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below;
provided that if the Master Servicer fails to make any remittance required by
this Subsection (I) to the Trustee for deposit in the Distribution Account on
the Master Servicer Remittance Date pursuant to clause (iii) or (xi) below, the
Master Servicer shall pay (from its own funds without right of reimbursement
therefor) to the Trustee, for the account of the Trustee, interest on any amount
not timely remitted at the Advance Rate from and including the day the
remittance was required to be made to, but not including, the day on which such
remittance is actually made, and, (notwithstanding any contrary provision of
Section 8.28) if such remittance and payment of interest are made not later than
11:00 a.m. (Eastern time) on the related Distribution Date, then, insofar as the
failure to make such remittance otherwise constitutes an Event of Default on the
part of the Master Servicer, then such Event of Default shall thereupon be
deemed to have been cured; and (z) to the applicable Special Servicer from time
to time of amounts payable to such Special Servicer from the applicable
Certificate Account pursuant to clauses (i), (ii), (iv), (vi), (vii) and (ix)
below of the following amounts, from the amounts specified for the following
purposes:
(i) Fees: The General Master Servicer shall pay (A) to itself Late Fees
(in excess of amounts used to pay Advance Interest) relating to Mortgage
Loans (other than NCB, FSB Loans) which are not Specially Serviced Mortgage
Loans, 50% of any Modification Fees relating to Mortgage Loans (other than
NCB, FSB Loans) that are not Specially Serviced Mortgage Loans, 50% of
assumption application fees relating to Mortgage Loans (other than NCB, FSB
Loans) that are not Specially Serviced Mortgage Loans, 50% of any
assumption fees relating to Mortgage Loans (other than NCB, FSB Loans) that
are not Specially Serviced Mortgage Loans, 100% of any extension fees
payable to the General Master Servicer under Section 8.10 or other fees
payable to the General Master Servicer hereunder; provided that any such
fees described in (A) hereof shall be divided between such Master Servicer
and any related Primary Servicer as set forth in the applicable Primary
Servicing Agreement and (B) directly to the General Special Servicer, 50%
of any assumption fees, assumption application fees, modification fees and
related charges on Mortgage Loans (other than the NCB, FSB Loans) that are
not Specially Serviced Mortgage Loans and, to the extent deposited into a
Certificate Account, all assumption fees (including assumption application
fees) relating to Specially Serviced Mortgage Loans (other than NCB, FSB
Loans) and, to the extent provided in Section 9.11(c), Late Fees,
Modification Fees, extension fees and other fees collected on Specially
Serviced Mortgage Loans (other than NCB, FSB Loans), in each case to the
extent provided for herein from funds paid by or on behalf of the
applicable Mortgagor and, to the extent provided in Section 9.11(c),
default interest (in excess of Advance Interest arising only from that
particular Specially Serviced Mortgage Loan (other than NCB, FSB Loans) for
which the Late Fees or default interest were collected).
The NCB Master Servicer shall pay (A) to itself Late Fees (in excess
of amounts used to pay Advance Interest) relating to NCB, FSB Loans that
are not Specially Serviced Mortgage Loans, 100% of any Modification Fees
relating to NCB, FSB Loans that are not Specially Serviced Mortgage Loan,
100% of assumption application fees relating to NCB, FSB Loans that are not
Specially Serviced Mortgage Loans, 50% of any assumption fees relating to
NCB, FSB Loans that are not Specially Serviced Mortgage Loans, 100% of any
extension fees payable to the NCB Master Servicer under Section 8.10 or
other fees payable to the NCB Master Servicer hereunder; and (B) directly
to the applicable Special Servicer, 50% of any assumption fees on NCB, FSB
Loans that are not Specially Serviced Mortgage Loans and, to the extent
deposited into a Certificate Account, all assumption fees (including
assumption application fees) relating to Specially Serviced Mortgage Loans
(that are NCB, FSB Loans) and, to the extent provided in Section 9.11(c),
Late Fees, Modification Fees and other fees collected on Specially Serviced
Mortgage Loans (that are NCB, FSB Loans), in each case to the extent
provided for herein from funds paid by or on behalf of the applicable
Mortgagor and, to the extent provided in Section 9.11(c), default interest
(in excess of Advance Interest arising only from that particular Specially
Serviced Mortgage Loan (that is an NCB, FSB Loan) for which the Late Fees
or default interest were collected);
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans, subject to
clause (B) below and subsection (iv) of Section 5.2(a)(II) below, to
reimburse or pay to the Master Servicers, the Special Servicers and the
Trustee, pursuant to Section 4.6, (x) prior to a Final Recovery
Determination or determination in accordance with Section 4.4 that any
Servicing Advance is a Nonrecoverable Advance, Servicing Advances on the
related Mortgage Loan from payments made by or on behalf of the related
Mortgagor of the amounts to which a Servicing Advance relates or from REO
Income from the related REO Property or from Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the
extent that a Servicing Advance has been or is being reimbursed, any
related Advance Interest thereon first, from Late Fees and default interest
collected during the Collection Period, and then from Excess Liquidation
Proceeds then available and then from any other amounts on deposit in the
applicable Certificate Account (or, if not available from such Certificate
Account, the other Certificate Account); provided that Late Fees and
default interest will be applied on a "loan by loan basis" (under which
Late Fees and default interest paid with respect to each Mortgage Loan will
be offset against the Advance Interest incurred and unpaid with respect to
the particular Mortgage Loan on or after the Cut-Off Date), to the payment
of Advance Interest incurred on or after the Cut-Off Date and unpaid on all
Advances on such Mortgage Loan; provided, further, that if both the General
Master Servicer and the General Special Servicer have outstanding Servicing
Advances at the same time, because the General Master Servicer did not
reimburse the General Special Servicer for such Servicing Advance as
provided in Section 4.3 hereof, and amounts on deposit in the Certificate
Account are not sufficient to reimburse both such Servicing Advances with
interest thereon, then such Servicing Advance with respect to the subject
Mortgage Loan made by the General Special Servicer shall be reimbursed
first until paid in full or (y) after a Final Recovery Determination or
determination that any Servicing Advance on the related Mortgage Loan is a
Nonrecoverable Advance, any Servicing Advances made on the related Mortgage
Loan or REO Property, as applicable, from any funds on deposit in the
applicable Certificate Account (or, if not available from such Certificate
Account, the other Certificate Account) (regardless of whether such amount
was recovered from the applicable Mortgage Loan or REO Property) and pay
Advance Interest thereon first, from Late Fees and default interest
collected during the Collection Period (applying such Late Fees and default
interest on a "loan by loan basis" to the payment of Advance Interest
incurred and unpaid on all Advances on such Mortgage Loan arising on or
after the Cut-Off Date), then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the applicable
Certificate Account (notwithstanding anything herein to the contrary each
Master Servicer shall reimburse itself or such other party pursuant to
Section 4.4(b)) and (B) in the case of the Non-Trust-Serviced Pari Passu
Loan and from any funds on deposit in the applicable Certificate Account
(or, if not available from such Certificate Account, the other Certificate
Account), to reimburse the 2007-HQ11 Master Servicer, the 2007-HQ11 Special
Servicer and the 2007-HQ11 Trustee for the Pari Passu Loan Nonrecoverable
Advances and any accrued and unpaid interest thereon provided for under the
2007-HQ11 Pooling and Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): in the case of the Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to each
Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to a
Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income from
the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds allocable to the related
Mortgage Loan and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees and
default interest collected during the Collection Period and allocable to
such Mortgage Loan, and then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account); provided that Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees
and default interest paid with respect to each Mortgage Loan will be offset
against the Advance Interest incurred and unpaid with respect to the
particular Mortgage Loan on or after the Cut-Off Date) or (y) if after a
Final Recovery Determination or determination in accordance with Section
4.4 that any P&I Advance on the related Mortgage Loan is a Nonrecoverable
Advance, for any Mortgage Loan, any P&I Advances made on the related
Mortgage Loan or REO Property from any funds on deposit in the applicable
Certificate Account (or, if not available from such Certificate Account,
the other Certificate Account) (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any
Advance Interest thereon, first, from Late Fees and default interest
collected during the Collection Period allocable to such Mortgage Loan
(applying such Late Fees and default interest on a "loan-by-loan basis," to
the payment of Advance Interest incurred and unpaid on all Advances on such
Mortgage Loan incurred on or after the Cut-Off Date), then from Excess
Liquidation Proceeds then available and then from any other amounts on
deposit in the applicable Certificate Account (or, if not available from
such Certificate Account, the other Certificate Account);
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicers the Special Servicing Fee and the
Work-Out Fee and, if applicable, to pay to the Primary Servicers (or the
General Master Servicer) the Primary Servicing Fees and to pay to the
parties entitled thereto the Excess Servicing Fees (to the extent not
previously retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for withdrawal by
the Trustee, the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses at the time set
forth herein or in the definition thereof, the payment of which is not more
specifically provided for in this Agreement; provided that the Depositor
shall not be entitled to receive reimbursement for performing its duties
under this Agreement;
(vii) Liquidation Fees: to pay to the Special Servicers from the
applicable Certificate Accounts, the amount certified by each Special
Servicer equal to the Liquidation Fee, to the extent provided in Section
9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized on
the investment of funds deposited in the applicable Certificate Accounts;
(ix) Prepayment Interest Excesses: to pay to the Master Servicers the
aggregate Prepayment Interest Excesses relating to the Mortgage Loans for
which they act as Master Servicer which are not Specially Serviced Mortgage
Loans, to the extent not offset by Prepayment Interest Shortfalls relating
to such Mortgage Loans; and to pay to the Master Servicers the aggregate
Prepayment Interest Excesses relating to the Specially Serviced Mortgage
Loans for which they act as Master Servicer, which have received voluntary
Principal Prepayments (not from Liquidation Proceeds or from modifications
to Specially Serviced Mortgage Loans), to the extent not offset by
Prepayment Interest Shortfalls relating to such Specially Serviced Mortgage
Loans;
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Accounts in error;
(xi) Distribution Account: to make payment on each Master Servicer
Remittance Date of the remaining amounts in the applicable Certificate
Accounts (excluding Excess Interest and Excess Liquidation Proceeds) into
the Distribution Account (or in the case of any Excess Interest, deposit to
the Excess Interest Sub-account), other than amounts held for payment in
future periods or pursuant to clause (xii) below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Accounts pursuant to Section 8.29.
Subsection (II). The provisions of this subsection II of this Section
5.2(a) shall apply notwithstanding any contrary provision of subsection (I) of
this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts: If any
Advance made with respect to any Mortgage Loan on or before the date on
which such Mortgage Loan becomes (or, but for the requirement that the
Mortgagor shall have made three consecutive scheduled payments under its
modified terms, would then constitute) a Rehabilitated Mortgage Loan,
together with Advance Interest accrued thereon, is not, pursuant to the
operation of the provisions of Section 5.2(a)(I), reimbursed to the Person
who made such Advance on or before the date, if any, on which such Mortgage
Loan becomes a Rehabilitated Mortgage Loan, such Advance, together with
such Advance Interest, shall constitute a "Workout-Delayed Reimbursement
Amount" to the extent that such amount has not been determined to
constitute a Nonrecoverable Advance. All references herein to
"Workout-Delayed Reimbursement Amount" shall be construed always to mean
the related Advance and any Advance Interest thereon, together with any
further Advance Interest that accrues on the unreimbursed portion of such
Advance from time to time in accordance with the other provisions of this
Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions: Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of and
conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is not
otherwise entitled to reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above.
Subsection (iv) below (subject to the terms and conditions thereof)
authorizes the Master Servicer to abstain from reimbursing itself (or, if
applicable, the Trustee to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances in its sole discretion.
Upon any determination that all or any portion of a Workout-Delayed
Reimbursement Amount constitutes a Nonrecoverable Advance, then the
reimbursement or payment of such amount (and any further Advance Interest
that may accrue thereon) shall cease to be subject to the operation of
subsection (iii) below, such amount (and further Advance Interest) shall be
as fully payable and reimbursable to the relevant Person as would any other
Nonrecoverable Advance (and Advance Interest thereon) and, as a
Nonrecoverable Advance, such amount may become the subject of the
applicable Master Servicer's (or, if applicable, the Trustee's) exercise of
its sole discretion authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts: Each
Master Servicer, each Special Servicer and the Trustee, as applicable,
shall be entitled to reimbursement and payment for all Workout-Delayed
Reimbursement Amounts in each Collection Period; provided, however, that
the aggregate amount (for all such Persons collectively) of such
reimbursements and payments in such Collection Period shall not exceed (and
the reimbursement and payment shall be made from) the aggregate amounts in
the Certificate Account allocable to principal for such Collection Period
contemplated by clause (I)(A) of the definition of Principal Distribution
Amount (but not including any such amounts that constitute Advances) and
net of any Nonrecoverable Advances then outstanding and reimbursable from
such amounts in the Certificate Account allocable to principal in
accordance with Section 5.2(a)(II)(iv) below. As and to the extent provided
in clause (II)(A) of the definition thereof, the Principal Distribution
Amount for the Distribution Date related to such Collection Period shall be
reduced to the extent that such payment or reimbursement of a
Workout-Delayed Reimbursement Amount is made from amounts in the
Certificate Account allocable to principal pursuant to the preceding
sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Discretion to
Abstain from Reimbursements of Certain Nonrecoverable Advances: To the
extent that Section 5.2(a)(I) otherwise entitles the applicable Master
Servicer, Special Servicer or Trustee to reimbursement for any
Nonrecoverable Advance (including Workout Delayed Reimbursement Amounts
that have been determined by a Master Servicer, Special Servicer or the
Trustee to be Nonrecoverable Advances) (or payment of Advance Interest
thereon from a source other than Late Fees and default interest on the
related Mortgage Loan) during any Collection Period, then, notwithstanding
any contrary provision of subsection (I) above, (a) to the extent that one
or more such reimbursements and payments of Nonrecoverable Advances (and
such Advance Interest thereon) are made, such reimbursements and payments
shall be made, first, from the aggregate principal collections and
recoveries on the Mortgage Loans for such Collection Period contemplated by
clause (I)(A) of the definition of Principal Distribution Amount (but not
including any such amounts that constitute Advances, and prior to any
deduction for Workout-Delayed Reimbursement Amounts (and Advance Interest
thereon) that were reimbursed or paid during the related Collection Period
from principal collections on the Mortgage Loans, as described by clause
(II)(A) of the definition of Principal Distribution Amount and pursuant to
subsection (iii) of Section 5.2(a)(II)), and then from other collections
(including interest) on the Mortgage Loans for such Collection Period, and
(b) if and to the extent that the amount of such a Nonrecoverable Advance
(and Advance Interest thereon), together with all Nonrecoverable Advances
(and Advance Interest thereon) theretofore reimbursed during such
Collection Period, would exceed such principal collections and recoveries
on the Mortgage Loans for such Collection Period (and Advance Interest
thereon), the applicable Master Servicer (and the applicable Special
Servicer or the Trustee, as applicable, if it made the relevant Advance) is
hereby authorized (but shall not be construed to have any obligation
whatsoever) (as an accommodation), if it elects at its sole discretion
(subject to the requirement below that the applicable Master Servicer may
not defer any reimbursement for more than 6 Collection Periods without the
consent of the Operating Adviser and, in any event, 12 Collection Periods
in the aggregate), to abstain from reimbursing itself (notwithstanding that
it is entitled to such reimbursement) during that Collection Period for all
or a portion of such Nonrecoverable Advance (and Advance Interest thereon);
provided, however, that no deferment shall be more than the amount by which
the Nonrecoverable Advances (and Advance Interest thereon) exceed the
amount of principal on collection in the Certificate Account. The
applicable Master Servicer or applicable Special Servicer, in considering
whether an Advance is a Nonrecoverable Advance, shall 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 applicable Master Servicer, applicable
Special 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 or Servicing Advance under consideration, but also as a potential
source of reimbursement of such Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount which is or may be being deferred or delayed. In
connection with a potential election by the applicable Master Servicer,
Special Servicer or Trustee to abstain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the Collection
Period for any Distribution Date, the applicable Master Servicer (or the
applicable Special Servicer or the Trustee, as applicable) shall further be
authorized to wait for principal collections to be received before making
its determination of whether to abstain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof until the end of the
Collection Period. Notwithstanding the foregoing, the applicable Master
Servicer (or the applicable Special Servicer or the Trustee, as applicable)
may defer the above reimbursement for no more than 6 Collection Periods
without the consent of the Operating Adviser and, in any event, 12
Collection Periods in the aggregate. If the applicable Master Servicer (or
the applicable Special Servicer or the Trustee, as applicable), determines,
in its sole discretion, that its ability to fully recover the
Nonrecoverable Advances has been compromised or for any other reason
decides not to continue deferral, then the applicable Master Servicer (or
the applicable Special Servicer or the Trustee, as applicable) will be
entitled to immediate reimbursement of such Nonrecoverable Advance plus
interest thereon at the Advance Rate. The agreement of the applicable
Master Servicer (or the applicable Special Servicer or the Trustee, as
applicable) to defer reimbursement of such Nonrecoverable Advances shall
not be construed as an obligation on the part of such applicable Master
Servicer (or the applicable Special Servicer or the Trustee, as
applicable), or a right of the Certificateholders. No such deferment shall
be deemed to create in the Certificateholders a right to prior payment of
distributions over such Master Servicer's, Special Servicer's or the
Trustee's right to reimbursement for Advances. Deferred Advances shall
continue to earn interest at the Advance Rate. In all events the decision
to defer reimbursement or seek immediate reimbursement of Nonrecoverable
Advances shall be deemed to be in accordance with the Servicing Standard.
None of the Master Servicers, the Special Servicers or the Trustee
shall have any liability whatsoever for making an election, or refraining from
making an election, that is authorized under this subsection (II)(iv). The
foregoing shall not, however, be construed to limit any liability that may
otherwise be imposed on such Person for any failure by such Person to comply
with the conditions to making such an election under this subsection (II)(iv) or
to comply with the terms of this subsection (II)(iv) and the other provisions of
this Agreement that apply once such an election, if any, has been made.
Any election by a Master Servicer (or the applicable Special Servicer
or the Trustee, as applicable) to abstain from reimbursing itself for any
Nonrecoverable Advance (and Advance Interest thereon) or portion thereof with
respect to any Collection Period shall not be construed to impose on such Master
Servicer (or the applicable Special Servicer or the Trustee, as applicable) any
obligation to make such an election (or any entitlement in favor of any
Certificateholder or any other Person to such an election) with respect to any
subsequent Collection Period or to constitute a waiver or limitation on the
right of such Master Servicer (or the applicable Special Servicer or the
Trustee, as applicable) to otherwise be reimbursed for such Nonrecoverable
Advance (and Advance Interest thereon). Any election by a Master Servicer, a
Special Servicer or the Trustee to abstain from reimbursing itself for any
Nonrecoverable Advance or portion thereof with respect to any one or more
Collection Periods shall not limit the accrual of Advance Interest on the
unreimbursed portion of such Nonrecoverable Advance for the period prior to the
actual reimbursement of such Nonrecoverable Advance. None of the Master
Servicers, the Special Servicers, the Trustee or the other parties to this
Agreement shall have any liability to one another, to any of the
Certificateholders for any such election that such party makes as contemplated
by this subsection or for any losses, damages or other adverse economic or other
effects that may arise from such an election. The foregoing statements in this
paragraph shall not limit the generality of the statements made in the
immediately preceding paragraph. Notwithstanding the foregoing, none of the
Master Servicers, the Special Servicers or the Trustee shall have the right to
abstain from reimbursing itself for any Nonrecoverable Advance to the extent of
the amount described in clause (I)(A) of the definition of Principal
Distribution Amount.
To the extent that amounts in the Certificate Account allocable to
principal are not sufficient to fully reimburse any Nonrecoverable Advance (with
interest thereon) in any Collection Period and a Master Servicer, a Special
Servicer or the Trustee, as applicable, does not intend to exercise its sole
discretion to defer the reimbursement of such amounts to a subsequent Collection
Period, then the applicable Special Servicer, the applicable Master Servicer or
the Trustee, as applicable, shall give the Rating Agencies at least 15 days'
notice prior to any reimbursement to it of Nonrecoverable Advances from amounts
in the Certificate Account allocable to interest on the Mortgage Loans unless
(1) the applicable Special Servicer, the applicable Master Servicer or the
Trustee, as applicable, determines in its sole discretion that waiting 15 days
after such a notice could jeopardize such Special Servicer's, such Master
Servicer's or the Trustee's, as applicable, ability to recover such
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the applicable Special Servicer, the applicable
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 applicable Special Servicer or the applicable Master
Servicer, as applicable, has not timely received from the Trustee information
requested by the applicable Special Servicer or the applicable Master Servicer,
as applicable, to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the
applicable Special Servicer, the applicable Master Servicer or the Trustee, as
applicable, shall give Rating Agencies notice of an anticipated reimbursement to
it of Nonrecoverable Advances from amounts in the Certificate Account allocable
to interest on the Mortgage Loans as soon as reasonably practicable in such
circumstances.
(v) Reimbursement Rights of the Master Servicers, Special Servicers
and Trustee Are Senior: Nothing in this Agreement shall be deemed to create
in any Certificateholder a right to prior payment of distributions over the
applicable Master Servicer's, the applicable Special Servicer's or the
Trustee's right to reimbursement for Advances plus Advance Interest
(whether those that constitute Workout-Delayed Reimbursement Amounts, those
that have been the subject of the Master Servicer's election authorized in
subsection (iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the applicable
Certificate Account (or sub-account thereof) and shall be distributed on the
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate; provided, however, that as to (i) the Mortgage Loans
set forth on Schedule XII, for which a Scheduled Payment (including any Balloon
Payment) is due in a month on a Due Date (including any grace period) that is
scheduled to occur after the end of the Collection Period in such month, sums
received by the applicable Master Servicer with respect to such Scheduled
Payment but after the end of such Collection Period shall be applied by such
Master Servicer to reimburse any related P&I Advance made pursuant to Section
5.1(h), and such Master Servicer shall remit to the Distribution Account on any
Master Servicer Remittance Date for a Collection Period any such Scheduled
Payments (including any Balloon Payments) received after the end of such
Collection Period but no later than two Business Days immediately preceding such
Master Servicer Remittance Date on such Mortgage Loans set forth on Schedule
XII, and (ii) the Mortgage Loans set forth on Schedule XIII, for which a
voluntary Principal Prepayment is permitted on any day of the month without the
payment of a full month's interest, the applicable Master Servicer with respect
to such Principal Prepayment shall remit to the Trustee for deposit into the
Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments received after the end of such Collection
Period but no later than two Business Days immediately preceding such Master
Servicer Remittance Date on such Mortgage Loans set forth on Schedule XIII. In
connection with the deposit of any Scheduled Payments and Principal Prepayments
to the Distribution Account in accordance with the immediately preceding
sentence, the applicable Master Servicer shall promptly notify the Trustee and
the Trustee shall, if it has already reported anticipated distributions to the
Depository, use commercially reasonable efforts to cause the Depository to make
the revised distribution on a timely basis on such Distribution Date. Neither
the applicable Master Servicer nor the Trustee shall be liable or held
responsible for any resulting delay or failure or any claims or costs incurred
in the making of such distribution to Certificateholders. For purposes of the
definition of "Available Distribution Amount" and "Principal Distribution
Amount," the Scheduled Payments and Principal Prepayments referred to in the
preceding proviso shall be deemed to have been collected in the prior Collection
Period.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2007 (or February, if the related Distribution Date is the
Final Distribution Date), the Trustee shall withdraw all related amounts then in
the applicable Interest Reserve Accounts and deposit such amounts into the
Distribution Account.
Section 5.3 Distribution Account, Excess Interest Sub-account and
Reserve Account
(a) The Trustee shall establish (with respect to clause (i), on or
prior to the Closing Date, and with respect to clause (ii), on or prior to the
date the Trustee determines is necessary) and maintain in its name, on behalf of
the Trustee, (i) an account (the "Distribution Account"), which shall include a
certain sub-account (the "Excess Interest Sub-account") to be held in trust for
the benefit of the Holders until disbursed pursuant to the terms of this
Agreement, titled: "U.S. Bank National Association, as Trustee, in trust for the
benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13, Distribution Account" and (ii) an
account (the "Reserve Account") to be held in trust for the benefit of the
holders of interests in the Trust until disbursed pursuant to the terms of this
Agreement, titled: "U.S. Bank National Association, as Trustee, in trust for the
benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13, Reserve Account." The Distribution
Account and the Reserve Account shall be Eligible Accounts. Funds in the Reserve
Account shall not be invested. The Distribution Account and the Reserve Account
shall be held separate and apart from and shall not be commingled with any other
monies including, without limitation, other monies of the Trustee held under
this Agreement. The Excess Interest Sub-account and the Reserve Account shall be
deemed sub-accounts of the Distribution Account.
Funds in the Distribution Account will remain uninvested.
If the Trustee deposits in or transfers to the Distribution Account, as
the case may be, any amount not required to be deposited therein or transferred
thereto, it may at any time withdraw such amount or retransfer such amount from
the Distribution Account, as the case may be, notwithstanding any provision
herein to the contrary.
(b) Except as set forth in the next succeeding sentences, the Trustee
shall deposit into the Distribution Account or the Reserve Account, as
applicable, on the Business Day received, all moneys remitted by the Master
Servicers pursuant to this Agreement, including P&I Advances made by the Master
Servicers and the Trustee, other than Excess Liquidation Proceeds, into the
Distribution Account and all Excess Liquidation Proceeds into the Reserve
Account. The Trustee shall deposit amounts constituting collections of Excess
Interest on the Mortgage Loans into the Excess Interest Sub-account. Subject to
Section 5.1(h), on any Master Servicer Remittance Date, none of the Master
Servicers shall have any duty to remit to the Distribution Account any amounts
other than amounts held in the applicable Certificate Accounts and collected
during the related Collection Period as provided in clauses (v) and (xi) of
Section 5.2(a) and the P&I Advance Amount, and, on the Master Servicer
Remittance Date occurring in March of any year, commencing in March 2007 (or
February, if the related Distribution Date is the Final Distribution Date),
related amounts held in the applicable Interest Reserve Accounts. The Trustee
shall make withdrawals from the Distribution Account (including the Excess
Interest Sub-account) and the Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in error
and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicers, the Primary
Servicers, the Special Servicers and the Trustee (including the Trustee's
Fee), or other expenses or other amounts permitted to be paid hereunder and
not previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to Certificateholders pursuant to Sections
6.5 and 6.11; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
Section 5.4 Trustee Reports
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicers and the Special
Servicers and delivered to the Trustee by such Master Servicers (no later than
2:00 p.m., New York City time on the Report Date), the Trustee shall make
available to any interested party via its internet website initially located at
"xxxx://xxx.xxxxxx.xxx/xxx" (the "Trustee's Website"), (i) the Monthly
Certificateholders Report (substantially in the form of Exhibit M), (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the CMSA
Loan Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File and the
CMSA Collateral Summary File, (iv) a CMSA Delinquent Loan Status Report, a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, a CMSA
Historical Liquidation Report, a CMSA Reconciliation of Funds Report, a CMSA REO
Status Report and an CMSA Loan Level Reserve/LOC Report, each containing
substantially the information contemplated in the definition of Unrestricted
Servicer Reports and (v) as a convenience for interested parties (and not in
furtherance of the distribution thereof under the securities laws), the Final
Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicers and the
Special Servicers and delivered to the Trustee in accordance herewith, the
Trustee shall make available via the Trustee's Website, on a restricted basis,
the Restricted Servicer Reports (including the Property File on or prior to each
Distribution Date, commencing in April 2007). The Trustee shall provide access
to the Restricted Servicer Reports, upon request, to each Certificateholder and
any prospective Certificateholder or Certificate Owner, each of the parties to
this Agreement, each of the Rating Agencies, each of the Underwriters, the
Operating Adviser, the Placement Agent and any Certificate Owner upon receipt
(which may be in electronic form) from such Person of an Investor Certificate in
the form of Exhibit Y, and any other Person upon the direction of the Depositor,
any Placement Agent or any Underwriter. For assistance with the above-mentioned
Trustee services, Certificateholders or any party hereto may initially call
(000) 000-0000.
The Trustee makes no representations or warranties as to the accuracy
or completeness of any report, document or other information made available on
the Trustee's Website and assumes no responsibility therefor. The Trustee shall
be entitled to conclusively rely on any information provided to it by the Master
Servicers or the Special Servicers and shall have no obligation to verify such
information and the Trustee may disclaim responsibility for any information
distributed by the Trustee for which it is not the original source. In
connection with providing access to the Trustee's Website, the Trustee, may
require registration and the acceptance of a disclaimer. None of any Master
Servicer, any Special Servicer, any Primary Servicer or the Trustee shall be
liable for the dissemination of information in accordance with this Agreement;
provided that this sentence shall not in any way limit the liability the Trustee
may otherwise have in the performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder that is a savings association,
bank, or insurance company, the Trustee shall provide (to the extent in its
possession) to each such Certificateholder such reports and access to non
privileged information and documentation regarding the Mortgage Loans and the
Certificates as such Certificateholder may reasonably deem necessary to comply
with applicable regulations of the Office of Thrift Supervision or successor or
other regulatory authorities with respect to investment in the Certificates;
provided that the Trustee shall be entitled to be reimbursed by such
Certificateholder for the Trustee's actual expenses incurred in providing such
reports and access.
(c) Upon written request, the Trustee shall send to each Person who at
any time during the calendar year was a Certificateholder of record, customary
information as the Trustee xxxxx xxx be necessary or desirable for such Holders
to prepare their federal income tax returns.
(d) [Reserved]
(e) The Trustee shall afford the Rating Agencies, the Depositor, the
Master Servicers, the Special Servicers, the Primary Servicers, the Operating
Adviser, any Certificateholder, prospective Certificate Owner or any Person
reasonably designated by any Placement Agent, or any Underwriter upon reasonable
notice and during normal business hours, reasonable access to all relevant,
non-attorney/client privileged and non-confidential records and documentation
regarding the applicable Mortgage Loans, REO Property and all other relevant
matters relating to this Agreement, and access to Responsible Officers of the
Trustee.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Trustee upon request; provided, however, that the Trustee shall be
permitted to require payment by the requesting party (other than the Depositor,
the Master Servicers, the Special Servicers, the Operating Adviser, the
Placement Agent or any Underwriter or any Rating Agency) of a sum sufficient to
cover the reasonable expenses actually incurred by the Trustee of providing
access or copies (including electronic or digital copies) of any such
information requested in accordance with the preceding sentence.
(g) The Trustee shall make available at its Corporate Trust Office
(either in physical or electronic form), during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, any Placement Agent, the
Underwriters, each Rating Agency, the Special Servicers and the Depositor,
originals or copies of, among other things, the following items: (i) the most
recent property inspection reports in the possession of the Trustee in respect
of each Mortgaged Property and REO Property, (ii) the most recent Mortgaged
Property/REO Property annual operating statement and rent roll (or in the case
of a residential cooperative property, the most recent maintenance schedule), if
any, collected or otherwise obtained by or on behalf of the Master Servicers or
the Special Servicers and delivered to the Trustee, and (iii) any Phase I
Environmental Report or engineering report prepared or appraisals performed in
respect of each Mortgaged Property and delivered to the Trustee; provided,
however, that the Trustee shall be permitted to require payment by the
requesting party (other than either Rating Agency or the Operating Adviser) of a
sum sufficient to cover the reasonable expenses actually incurred by the Trustee
of providing access or copies (including electronic or digital copies) of any
such information reasonably requested in accordance with the preceding sentence.
Section 5.5 Trustee Tax Reports
The Trustee shall perform all reporting and other tax compliance duties
that are the responsibility of each REMIC Pool and the Class EI Grantor Trust
under the Code, REMIC Provisions, or other compliance guidance issued by the
Internal Revenue Service or any state or local taxing authority, as applicable.
Consistent with this Pooling and Servicing Agreement, the Trustee shall provide
or cause to be provided (i) to the United States Department of Treasury or other
Persons (including, but not limited to, the Transferor of a Class R-I, Class
R-II or Class R-III Certificate, to a Disqualified Organization or to an agent
that has acquired a Class R-I, Class R-II or Class R-III Certificate on behalf
of a Disqualified Organization) such information as is necessary for the
application of any tax relating to the transfer of a Class R-I, Class R-II or
Class R-III Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions. Each Master Servicer and the Depositor shall on a timely basis
provide the Trustee with such information concerning the Mortgage Loans as is
necessary for the preparation of the tax or information returns or receipts of
each REMIC Pool and the Class EI Grantor Trust as the Trustee may reasonably
request from time to time. Each Special Servicer is required to provide to the
applicable Master Servicers all information in its possession with respect to
the Specially Serviced Mortgage Loans and REO Property in order for such Master
Servicers to comply with its obligations under this Section 5.5. The Trustee
shall be entitled to conclusively rely on any such information provided to it by
the Depositor, the Master Servicers or the Special Servicers and shall have no
obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally
Subject to Section 10.2(a), respecting the final distribution on the
Certificates, on each Distribution Date, the Trustee shall (1) first, withdraw
from the Distribution Account and pay to itself any unpaid fees, expenses and
other amounts then required to be paid pursuant to this Agreement, and then at
the written direction of each Master Servicer, withdraw from the Distribution
Account and pay to such Master Servicer, the Primary Servicers and the Special
Servicers any unpaid servicing compensation or other amounts currently required
to be paid pursuant to this Agreement (to the extent not previously retained or
withdrawn by the Master Servicers from the applicable Certificate Accounts), and
(2) second, make distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Trustee on or prior to the
related Record Date (or upon standing instructions given to the Trustee on the
Closing Date prior to any Record Date, which instructions may be revoked at any
time thereafter upon written notice to the Trustee five days prior to the
related Record Date) made by a Certificateholder by wire transfer in immediately
available funds to an account specified in the request of such
Certificateholder; provided that (i) remittances to the Trustee shall be made by
wire transfer of immediately available funds to the Distribution Account and the
Reserve Account; and (ii) the final distribution in respect of any Certificate
shall be made only upon presentation and surrender of such Certificate at such
location specified by the Trustee in a notice delivered to Certificateholders
pursuant to Section 10.2(a). If any payment required to be made on the
Certificates is to be made on a day that is not a Business Day, then such
payment will be made on the next succeeding Business Day without compensation
for such delay. All distributions or allocations made with respect to Holders of
Certificates of a Class on each Distribution Date shall be made or allocated
among the outstanding Interests in such Class in proportion to their respective
initial Certificate Balances or Percentage Interests for the Class X and Class
X-Y Certificates.
Section 6.2 REMIC I
On each Distribution Date, the Trustee shall be deemed to distribute to
itself on behalf of the Trustee, as holder of the REMIC I Regular Interests, for
the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount attributable
to interest collected or deemed collected on or with respect to each
Mortgage Loan or related REO Property, Distributable Certificate Interest
to each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount,
attributable to principal collected or deemed collected on or with respect
to each Mortgage Loan or related REO Property, principal to the
Corresponding REMIC I Regular Interest (other than the Group X-Y REMIC I
Regular Interest), until the Certificate Balance thereof is reduced to
zero;
(iii) any remaining funds with respect to each Mortgage Loan or
related REO Property, to reimburse any Realized Losses previously allocated
to the REMIC I Regular Interests (other than the Group X-Y REMIC I Regular
Interest), plus interest on such Realized Losses at the related REMIC I Net
Mortgage Rate previously allocated thereto; and
(iv) thereafter, to the Class R-I Certificateholders, at such time as
the Certificate Balance of all Classes of REMIC I Regular Interests have
been reduced to zero, and Realized Losses previously allocated thereto have
been reimbursed to the Holders of the REMIC I Regular Interests, any
amounts remaining with respect to each Mortgage Loan or related REO
Property, to the extent of the Trust's interest therein.
Section 6.3 REMIC II
On each Distribution Date, (i) the Trustee shall be deemed to
distribute to itself, as holder of the REMIC II Regular Interests, amounts
distributable to any Class of Principal Balance Certificates pursuant to Section
6.5 or Section 10.1 to its Corresponding REMIC II Regular Interest set forth in
the Preliminary Statement hereto; and (ii) all distributions made in respect of
the Class X Certificates on each Distribution Date pursuant to Section 6.5 or
Section 10.1, and allocable to any particular Component of such Class of
Certificates in accordance with the last paragraph of Section 6.5(a), shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
such Component's Corresponding REMIC II Regular Interest. All distributions made
in respect of the Class X-Y Certificates on each Distribution Date pursuant to
Section 6.5 or Section 10.1 shall be deemed distributed to REMIC II Regular
Interest X-Y. All distributions of reimbursements of Realized Losses made in
respect of any Class of Principal Balance Certificates on each Distribution Date
pursuant to Section 6.5 shall be deemed to have first been distributed from
REMIC II to REMIC III in respect of its Corresponding REMIC II Regular Interest
set forth in the Preliminary Statement hereto. Any amounts remaining in the
Distribution Account with respect to REMIC II on any Distribution Date after the
foregoing distributions shall be distributed to the holders of the Class R-II
Certificates.
Section 6.4 [Reserved]
Section 6.5 REMIC III
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account an amount equal to the Available Distribution Amount and
shall distribute such amount (other than the amount attributable to Excess
Liquidation Proceeds which shall be distributed in accordance with Section
6.5(b) and the amount attributable to Excess Interest which shall be distributed
in accordance with Section 6.5(c)) in the following amounts and order of
priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class X Certificates and Class X-Y Certificates,
concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates and Class A-4 Certificates, the
Distributable Certificate Interest Amount in respect of such Class for
such Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 1), pro rata
in proportion to the Distributable Certificate Interest Amount payable
in respect of each such Class;
(B) to the Holders of the Class A-1A Certificates, the
Distributable Certificate Interest Amount in respect of such Class for
such Distribution Date (which shall be payable from amounts in the
Available Distribution Amount attributable to Loan Group 2);
(C) to the Holders of the Class X Certificates and Class X-Y
Certificates, the Distributable Certificate Interest Amount in respect
of each such Class for such Distribution Date, pro rata in proportion
to the Distributable Certificate Interest Amount payable in respect of
each such Class;
provided, however, that if the portion of Available Distribution
Amount attributable to either Loan Group is insufficient to pay in
full the total amount of interest to be distributed with respect to
any of the Class A, Class X or Class X-Y Certificates on such
Distribution Date as described above, the Available Distribution
Amount will be allocated among the Class A Certificates, the Class X
Certificates and the Class X-Y Certificates, pro rata in proportion to
the respective amounts of interest payable thereon for such
Distribution Date, without regard to Loan Group;
(ii) (A) to the holders of the Class A-1, Class A-1A, Class A-2, Class
A-3 and Class A-4 Certificates,
(1) first, to the Holders of the Class A-1 Certificates, the
Loan 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 Loan Group 2 Principal
Distribution Amount for such Distribution Date, until the
aggregate Certificate Balance of the Class A-1 Certificates has
been reduced to zero; the portion of the Loan Group 2 Principal
Distribution Amount distributed hereunder will be reduced by any
portion thereof distributed to the Holders of the Class A-1A
Certificates;
(2) second, upon payment in full of the aggregate
Certificate Balance of the Class A-1 Certificates, to the Holders
of the Class A-2 Certificates, the Loan 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 Loan Group 2 Principal Distribution Amount,
until the aggregate Certificate Balance of the Class A-2
Certificates has been reduced to zero; the portion of the Loan
Group 1 Principal Distribution Amount and Loan Group 2 Principal
Distribution Amount distributed hereunder will be reduced by any
portion thereof distributed to the Holders of the Class A-1
Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class A-1A Certificates;
(3) third, upon payment in full of the aggregate Certificate
Balance of the Class A-2 Certificates, to the Holders of the
Class A-3 Certificates, the Loan 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 Loan Group 2 Principal Distribution Amount, until the
aggregate Certificate Balance of the Class A-3 Certificates has
been reduced to zero; the portion of the Loan Group 1 Principal
Distribution Amount and Loan Group 2 Principal Distribution
Amount distributed hereunder will be reduced by any portion
thereof distributed to the Holders of the Class A-1 Certificates,
Class A-2 Certificates and (solely with respect to the Loan Group
2 Principal Distribution Amount) Class A-1A Certificates;
(4) fourth, upon payment in full of the aggregate
Certificate Balance of the Class A-3 Certificates, to the Holders
of the Class A-4 Certificates, the Loan 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 Loan Group 2 Principal Distribution Amount,
until the aggregate Certificate Balance of the Class A-4
Certificates has been reduced to zero; the portion of the Loan
Group 1 Principal Distribution Amount and Loan Group 2 Principal
Distribution Amount distributed hereunder will be reduced by any
portion thereof distributed to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates and
(solely with respect to the Loan Group 2 Principal Distribution
Amount) Class A-1A Certificates; and
(B) to the Holders of the Class A-1A Certificates, the Loan Group
2 Principal Distribution Amount for such Distribution Date and, after
the Certificate Balance of the Class A-4 Certificates has been reduced
to zero, the Loan Group 1 Principal Distribution Amount for such
Distribution Date, until the aggregate Certificate Balance of the
Class A-1A Certificates has been reduced to zero; the portion of the
Loan Group 1 Principal Distribution Amount will be reduced by any
portion thereof distributed to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates and Class
A-4 Certificates;
(iii) to the Holders of the Class A Certificates, Class X Certificates
and Class X-Y Certificates, pro rata (treating principal and interest
losses separately) in proportion to their respective entitlements to
reimbursement described in this clause, to reimburse any Realized Losses or
Expense Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses or Expense Losses;
(iv) to the Holders of the Class A-M Certificates, Distributable
Certificate Interest for such Distribution Date;
(v) upon payment in full of the Certificate Balance of the Class A
Certificates, to the Holders of the Class A-M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class A-M Certificates has been reduced to zero;
(vi) to the Holders of the Class A-M Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(vii) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
(viii) upon payment in full of the Certificate Balance of the Class
A-M Certificates, to the Holders of the Class A-J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions to Holders of Class A Certificates and Class A-M
Certificates hereunder), until the Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(ix) to the Holders of the Class A-J Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(x) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the Class A-J
Certificates, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates, Class A-M Certificates
and Class A-J Certificates hereunder), until the Certificate Balance of the
Class B Certificates has been reduced to zero;
(xii) to the Holders of the Class B Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xiii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the Class B
Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates and Class B Certificates hereunder), until the
Certificate Balance of the Class C Certificates has been reduced to zero;
(xv) to the Holders of the Class C Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xvi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xvii) upon payment in full of the Certificate Balance of the Class C
Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates and Class C Certificates
hereunder), until the Certificate Balance of the Class D Certificates has
been reduced to zero;
(xviii) to the Holders of the Class D Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xix) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) upon payment in full of the Certificate Balance of the Class D
Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates and the
Class D Certificates hereunder), until the Certificate Balance of the Class
E Certificates has been reduced to zero;
(xxi) to the Holders of the Class E Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;;
(xxii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the Class E
Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class D
Certificates and Class E Certificates hereunder), until the Certificate
Balance of the Class F Certificates has been reduced to zero;
(xxiv) to the Holders of the Class F Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxv) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the Class F
Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates and Class F Certificates hereunder),
until the Certificate Balance of the Class G Certificates has been reduced
to zero;
(xxvii) to the Holders of the Class G Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxviii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxix) upon payment in full of the Certificate Balance of the Class G
Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A Certificates, 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 hereunder), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxx) to the Holders of the Class H Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxii) upon payment in full of the Certificate Balance of the Class H
Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A 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 and Class H Certificates hereunder), until the Certificate
Balance of the Class J Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class J Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxiv) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of the Class J
Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A 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 and Class J Certificates hereunder),
until the Certificate Balance of the Class K Certificates has been reduced
to zero;
(xxxvi) to the Holders of the Class K Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xxxvii) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of the Class
K Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A 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 hereunder), until the Certificate Balance of the Class L
Certificates has been reduced to zero;
(xxxix) to the Holders of the Class L Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xl) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date;
(xli) upon payment in full of the Certificate Balance of the Class L
Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A 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 and Class L Certificates hereunder), until the Certificate
Balance of the Class M Certificates has been reduced to zero;
(xlii) to the Holders of the Class M Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xliii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xliv) upon payment in full of the Certificate Balance of the Class M
Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A 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 and Class M Certificates hereunder),
until the Certificate Balance of the Class N Certificates has been reduced
to zero;
(xlv) to the Holders of the Class N Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlvi) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlvii) upon payment in full of the Certificate Balance of the Class N
Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A 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 and Class N
Certificates hereunder), until the Certificate Balance of the Class O
Certificates has been reduced to zero;
(xlviii) to the Holders of the Class O Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses;
(xlix) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) upon payment in full of the Certificate Balance of the Class O
Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions to Holders of Class A 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 and Class O Certificates hereunder), until the Certificate
Balance of the Class P Certificates has been reduced to zero;
(li) to the Holders of the Class P Certificates, to reimburse any
Realized Losses or Expense Losses previously allocated thereto and not
previously fully reimbursed, plus one month's interest at the applicable
Pass-Through Rate on such Realized Losses or Expense Losses; and
(lii) to the Holders of the Class R-III Certificates at such time as
the Certificate Balances of all Classes of REMIC Regular Certificates have
been reduced to zero, and Realized Losses or Expense Losses previously
allocated to each Holder have been reimbursed to the Holders of the REMIC
Regular Certificates, any amounts remaining on deposit in the Distribution
Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to Certificate
Balances of all the Classes of Subordinate Certificates, the Principal
Distribution Amount will be distributed,
o first, to the Holders of the Class A-1, Class A-1A, Class A-2, Class A-3
and Class A-4 Certificates, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero; and
o second, to the Holders of the Class A-1, Class A-1A, Class A-2, Class A-3
and Class A-4 Certificates, pro rata, based on the respective amounts of
unreimbursed Realized Losses or Expense Losses previously allocated to each
such Class, plus one month's interest on such Realized Losses or Expense
Losses at the applicable Pass-Through Rate.
(b) On each Distribution Date, following the above-described
distributions on the Principal Balance Certificates and the Class X Certificates
and Class X-Y Certificates, the Trustee shall withdraw amounts in the Reserve
Account and shall pay the Certificateholders on such Distribution Date such
amounts in the following priority:
(i) first, from amounts in the Reserve Account with respect to all
Mortgage Loans, to reimburse the Holders of the Class A Certificates, the
Class X Certificates and the Class X-Y Certificates, pro rata (treating
principal and interest losses separately), and then the remaining amounts to
reimburse the Principal Balance Certificates (other than the Class A
Certificates) (in order of alphabetical Class designation, it being
understood that the rights of the Holders of the Class A-J Certificates to
receive such distributions are subordinate to those of the Holders of the
Class A-M Certificates) for any, and to the extent of, Realized Losses or
Expense Losses previously allocated to them and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses or Expense Losses; and
(ii) second, upon the reduction of the Aggregate Certificate Balance of
the Principal Balance Certificates to zero, to pay any amounts remaining on
deposit in such account to the Special Servicers as additional Special
Servicer Compensation.
Amounts reimbursed pursuant to Section 6.5(b)(i) shall be deemed to be
applied to reimbursement of Realized Losses or Expense Losses previously
allocated to the REMIC II Regular Interests and the REMIC I Regular Interests in
the reverse sequential order and priority as such Realized Losses or Expense
Losses were applied thereto.
(c) On each Distribution Date, the Trustee shall withdraw from the
Excess Interest Sub-account any Excess Interest on deposit therein, and the
Trustee shall distribute such Excess Interest on such Distribution Date to the
Class EI Certificates.
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized during the
related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be allocated
to reduce first, Distributable Certificate Interest for such Distribution
Date, and then Unpaid Interest in each case owing on the Corresponding REMIC
I Regular Interests (and as between the related Group X-Y REMIC I Regular
Interest and Group PB REMIC I Regular Interest, pro rata, based on
Distributable Certificate Interest otherwise payable thereon); and to the
extent that such Realized Interest Loss exceeds such amount, shall be
treated as an Expense Loss; and
(iii) Expense Losses (not otherwise applied above) realized during the
related Collection Period shall be allocated among the REMIC I Regular
Interests in proportion to their Certificate Balances or Notional Amounts
(and, as between the related Group X-Y REMIC I Regular Interest and Group PB
REMIC I Regular Interest, in proportion to Distributable Certificate
Interest or Unpaid Interest, as applicable) after making all other
allocations for such Distribution Date.
(b) In the event that a Master Servicer, a Special Servicer or the
Trustee determines that an Advance previously made by it (whether such Advance
(together with Advance Interest thereon) was in respect of principal or interest
on the related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance
and such Master Servicer withdraws the amount of such Advance from the
applicable Certificate Account pursuant to Section 5.2(a) hereof (which amount
shall be treated as an Available Advance Reimbursement Amount pursuant to
Section 4.6 or if the Master Servicer determines any Unliquidated Advance has
become a Nonrecoverable Advance), the applicable Master Servicer (after
consultation with the Special Servicer) shall compute the Realized Loss with
respect to such Mortgage Loan (and the Trustee shall allocate the Realized Loss)
as follows:
(i) the amount withdrawn from the Certificate Account shall be treated
as Realized Principal Losses up to the amount of the aggregate amount in the
Certificate Account allocable to principal for such Collection Period
contemplated by clause (I)(A) of the definition of Principal Distribution
Amount, and shall be allocated to the Corresponding REMIC I Regular Interest
in accordance with Section 6.6(a)(i) (and to the extent that any Realized
Principal Loss exceeds the Certificate Balance of the Corresponding REMIC I
Regular Interest, such Realized Principal Loss shall be allocated to the
other Corresponding REMIC I Regular Interests in accordance with Section
6.6(a)(iii)), and such withdrawal shall reduce the principal paid on each
such REMIC I Regular Interest on which principal would otherwise be paid on
such Distribution Date, in proportion to such principal payments; and
(ii) if the amount that the applicable Master Servicer withdraws from
the Certificate Account as referenced in clause (b)(i) above exceeds such
amounts allocable to principal for such Collection Period, then such
additional amounts shall constitute Unpaid Interest, and shall be allocated
to the REMIC I Regular Interests on a pro rata basis based upon the amount
of accrued and unpaid interest thereon.
(c) At such time as a Final Recovery Determination is made with respect
to any Mortgage Loan with respect to which the applicable Master Servicer
previously had withdrawn amounts from the applicable Certificate Account
following a determination that Advances previously made were Nonrecoverable
Advances and Realized Losses were computed and allocated pursuant to clauses (a)
and (b) above, and amounts are recovered:
(i) the portion of the amount of collections recovered on the Mortgage
Loan that is identified and applied by the applicable Master Servicer as
recoveries of principal shall be applied first, to make payments of
principal on the Corresponding REMIC I Regular Interest up to an amount
equal to the Realized Principal Losses previously allocated thereto as a
result of the reimbursement of Nonrecoverable Advances or Advance Interest
(and the Principal Balance of the Mortgage Loan and the related Certificate
Balance of the Corresponding REMIC I Regular Interest shall be
correspondingly increased), and thereafter to make payments of principal to
the Corresponding REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(i) above, in
proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan that is
identified and applied by the applicable Master Servicer as recoveries of
interest shall be applied to make payments of Unpaid Interest on the REMIC I
Regular Interests with respect to which Unpaid Interest was allocated
pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC I Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC II Regular Interests in the amounts and in the manner as
will be allocated to the Corresponding Certificates relating thereto pursuant to
Section 6.6(f). Realized Interest Losses allocated to the Class X Certificates
shall reduce the amount of interest payable on the REMIC II Regular Interests
and shall be allocated pro rata based on the product of the Certificate Balance
of each REMIC II Regular Interest and the Class X Strip Rate (if any) applicable
to the Corresponding Component relating to such REMIC II Regular Interest.
(e) [Reserved]
(f) REMIC III. On each Distribution Date, all Realized Losses and
Expense Losses on the REMIC II Regular Interests for such Distribution Date (or
for prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC Regular Certificates in Reverse Sequential Order, with
such reductions being allocated among the Class A-1, Class A-1A, Class A-2,
Class A-3 and Class A-4 Certificates and, in the case of interest, Class X and
Class X-Y Certificates, pro rata (treating principal and interest losses
separately), in each case reducing (A) the Certificate Balance of such Class
(excluding the Class X and the Class X-Y Certificates) until such Certificate
Balance is reduced to zero; (B) Unpaid Interest owing to such Class to the
extent thereof; and (C) Distributable Certificate Interest owing to such Class,
provided that Realized Losses and Expense Losses shall not reduce the Aggregate
Certificate Balance of the REMIC Regular Certificates below the sum of the
Aggregate Certificate Balances of the REMIC II Regular Interests.
Section 6.7 Net Aggregate Prepayment Interest Shortfalls
On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in the Mortgage Loans in REMIC I (other than any Specially Designated
Co-op Mortgage Loan) shall be allocated among the REMIC I Regular Interests, pro
rata in proportion to the Accrued Certificate Interest for each such REMIC I
Regular Interest for such Distribution Date (without taking into account any
Class X-Y Interest Amount) and shall reduce Distributable Certificate Interest
for each such Interest. On each Distribution Date, any such Net Aggregate
Prepayment Interest Shortfalls in the REMIC I Regular Interests held by REMIC II
shall be allocated among the REMIC II Regular Interests (other than REMIC II
Regular Interest X-Y), pro rata in proportion to the Accrued Certificate
Interest for each such REMIC II Regular Interest for such Distribution Date
(without taking into account any Class X-Y Interest Amount) and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any such Net Aggregate Prepayment Interest Shortfalls on the
REMIC Regular Certificates shall be allocated to each Class of Certificates
(other than the Class X-Y Certificates), pro rata, in proportion to the amount
of Accrued Certificate Interest payable to such Class of Certificates on such
Distribution Date (without taking into account any Class X-Y Interest Amount),
in each case reducing interest otherwise payable thereon. The amount of Net
Aggregate Prepayment Interest Shortfalls allocated to a Class of Certificates
pursuant to the preceding sentence shall reduce the Distributable Certificate
Interest for such Class for such Distribution Date (without taking into account
any Accrued Certificate Interest payable to the Holders of the Class X-Y
Certificates on such Distribution Date.) On each Distribution Date, any Net
Aggregate Prepayment Interest Shortfalls in respect of any Specially Designated
Co-op Mortgage Loan shall be allocated among the REMIC I Regular Interests, pro
rata in proportion to the Accrued Certificate Interest for each such REMIC I
Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date, any such
Net Aggregate Prepayment Interest Shortfalls in the REMIC I Regular Interests
held by REMIC II shall be allocated among the REMIC II Regular Interests, pro
rata in proportion to the Accrued Certificate Interest for each such REMIC II
Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date, the
amount of any such Net Aggregate Prepayment Interest Shortfalls on the REMIC
Regular Certificates shall be allocated to each Class of Certificates, pro rata,
in proportion to the amount of Accrued Certificate Interest payable to such
Class of Certificates on such Distribution Date, in each case reducing interest
otherwise payable thereon. The amount of Net Aggregate Prepayment Interest
Shortfalls allocated to a Class of Certificates pursuant to the preceding
sentence shall reduce the Distributable Certificate Interest for such Class for
such Distribution Date. On each Distribution Date, any such Net Aggregate
Prepayment Interest Shortfalls in the REMIC I Regular Interests held by REMIC II
shall be allocated among the REMIC II Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC II Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such REMIC II Regular Interest. On each Distribution Date, any such Net
Aggregate Prepayment Interest Shortfalls in the REMIC Regular Certificates shall
be allocated among the REMIC Regular Certificates, pro rata in proportion to the
Accrued Certificate Interest for each Class of REMIC Regular Certificates for
such Distribution Date and shall reduce Distributable Certificate Interest for
each Class of REMIC Regular Certificates. No portion of any Net Aggregate
Prepayment Interest Shortfalls for any Distribution Date that is attributable to
a Mortgage Loan that is not a Specially Designated Co-op Mortgage Loan shall be
allocable to or reduce interest distributions on the Class X-Y Certificates.
Section 6.8 Adjustment of Servicing Fees
The Master Servicing Fee payable to each Master Servicer shall be
adjusted as provided in Section 8.10(c) herein. Any amount retained by REMIC I
as a result of a reduction of the Master Servicing Fee shall be treated as
interest collected with respect to the prepaid Mortgage Loans with respect to
which the Master Servicing Fee adjustment occurs.
Section 6.9 Appraisal Reductions
Not later than the date on which an Appraisal Event occurs, the
applicable Special Servicer shall have obtained (A) an Appraisal of the
Mortgaged Property securing the related Mortgage Loan if the Principal Balance
of such Mortgage Loan exceeds $2,000,000 or (B) at the option of the applicable
Special Servicer, if such Principal Balance is less than or equal to $2,000,000,
either an internal valuation prepared by such Special Servicer in accordance
with MAI standards (which internal valuation shall ascribe a value for any
residential cooperative property based on the value of such property as if
operated as a residential cooperative) or an Appraisal which in all cases shall
be completed as of the date that such Mortgage Loan becomes a Required Appraisal
Loan; provided that if the Special Servicer had completed or obtained an
Appraisal or internal valuation within the immediately prior 12 months, such
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an Appraisal of a Mortgaged
Property or prepare an internal valuation after receipt of the notice described
in clause (ii) of the definition of Appraisal Event, such Appraisal or internal
valuation will be obtained or prepared, as the case may be, no later than 60
days after receipt of such notice. With respect to each Mortgage Loan that is
cross-collateralized with any other Mortgage Loan, the Appraisal or internal
valuation need only be performed with respect to Mortgaged Properties that
constitute the principal security for the individual Mortgage Loan to which an
Appraisal Event occurs, and not with respect to all of the Mortgaged Properties
that constitute security for the individual Mortgage Loan in the
cross-collateralized group. Such Appraisal or valuation shall be conducted in
accordance with the definition of "market value" as set forth in 12 C.F.R. ss.
225.62 and shall be updated at least annually from the date of such Appraisal or
valuation, as applicable, to the extent such Mortgage Loan remains a Required
Appraisal Loan. The cost of any such Appraisal or valuation, if not performed by
the applicable Special Servicer, shall be an expense of the Trust and may be
paid from REO Income or, to the extent collections from such related Mortgage
Loan or Mortgaged Property does not cover the expense, such unpaid expense shall
be, subject to Section 4.4 hereof, advanced by the applicable Master Servicer at
the request of such Special Servicer pursuant to Section 4.6 in which event it
shall be treated as a Servicing Advance. The applicable Special Servicer shall
calculate any Appraisal Reduction. The applicable Master Servicer shall
recalculate the Appraisal Reduction for any Mortgage Loan based on the original
Appraisal or updated Appraisals or internal valuations provided from time to
time to it by the applicable Special Servicer and report such amount to the
Trustee. The applicable Special Servicer shall provide notice of any Appraisal
Event with respect to a Mortgage Loan to the applicable Master Servicer and the
Operating Adviser on the day of determination of such Appraisal Event.
Section 6.10 Compliance with Withholding Requirements
Notwithstanding any other provision of this Agreement to the contrary,
the Trustee shall comply with all federal withholding requirements with respect
to payments to Certificateholders of interest, original issue discount, or other
amounts that the Trustee reasonably believes are applicable under the Code,
giving effect to all applicable exemptions from withholding as to which the
recipient has furnished the applicable and effective certification or other
documentation. The consent of Certificateholders shall not be required for any
such withholding and any amount so withheld shall be regarded as distributed to
the related Certificateholders for purposes of this Agreement. In the event the
Trustee withholds any amount from payments made to any Certificateholder
pursuant to federal withholding requirements, the Trustee shall indicate to such
Certificateholder the amount withheld.
Section 6.11 Prepayment Premiums and Yield Maintenance Charges
On any Distribution Date prior to and including the Distribution Date
on which the Certificate Balance of the Class A Senior Certificates has been
reduced to zero, Prepayment Premiums or Yield Maintenance Charges collected with
respect to a Mortgage Loan in a particular Loan Group during any particular
Collection Period will be distributed by the Trustee on the Classes of
Certificates as follows: (i) first, the Trustee shall be deemed to distribute to
itself, as holder of the Group PB REMIC I Regular Interest to which such
Mortgage Loan relates, any Prepayment Premiums or Yield Maintenance Charges
collected on or with respect to such Mortgage Loan in that Loan Group on that
Distribution Date; and (ii) second, the Trustee shall be deemed to distribute to
itself, as holder of the REMIC II Regular Interests, any Prepayment Premiums or
Yield Maintenance Charges deemed distributed to the REMIC I Regular Interests,
and shall be deemed to distribute such Prepayment Premiums or Yield Maintenance
Charges to the REMIC II Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
REMIC II Regular Interests is then entitled to distributions of principal from
the Principal Distribution Amount, such Prepayment Premiums or Yield Maintenance
Charges shall be deemed distributed among such Classes pro rata in accordance
with the relevant amounts of entitlements to distributions of principal).
Following such deemed distributions, in respect of Prepayment Premium
or Yield Maintenance Charges on each Mortgage Loan in Loan Group 1, the Holders
of the respective Classes of Principal Balance Certificates (other than the
Class A-1A, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates) then entitled to distributions of principal from the Principal
Distribution Amount for such Distribution Date, will be entitled to, and the
Trustee will pay to such Holder(s), an amount equal to, in the case of each such
Class, the product of (a) a fraction, which in no event may be greater than 1.0
or less than 0.0, the numerator of which is the amount distributed as principal
to the Holders of all Classes of Certificates, except the Class A-1A
Certificates, on that Distribution Date, and the denominator of which is the
total amount distributed as principal to the Holders of all Classes of Principal
Balance Certificates on that Distribution Date, (b) the Base Interest Fraction
for the related Principal Prepayment and that Class of Certificates and (c) the
amount of Prepayment Premiums or Yield Maintenance Charges collected in respect
of such Principal Prepayment during the related Collection Period. Following the
deemed distributions set forth in the first paragraph of this Section 6.11,
Prepayment Premiums or Yield Maintenance Charges collected in respect of each
Mortgage Loan included in Loan Group 2 during the related Collection Period will
be distributed by the Trustee as follows: to the Holders of the Class A-1A
Certificates then entitled to distributions of principal on such Distribution
Date, an amount equal to the product of (a) a fraction, which in no event may be
greater than 1.0 or less than 0.0, the numerator of which is the amount
distributed as principal to the Holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
Holders of the Class A-1A Certificates, (b) the Base Interest Fraction for the
related Principal Prepayment and that Class and (c) the amount of the Prepayment
Premium or Yield Maintenance Charge collected in respect of such Principal
Prepayment during the related Collection Period.
If there is more than one such Class of Principal Balance Certificates
entitled to distributions of principal on such Distribution Date, the aggregate
amount described in the preceding sentence will be allocated among such Classes
on a pro rata basis in accordance with the relative amounts of entitlement to
such distributions of principal. Any portion of such Prepayment Premium or Yield
Maintenance Charge that is not so distributed to the Holders of such Principal
Balance Certificates will be distributed to the Holders of the Class X
Certificates.
Notwithstanding the foregoing, Yield Maintenance Charges collected
during any Collection Period with respect to any Specially Designated Co-op
Mortgage Loan will be distributed, on a pro rata basis, to the REMIC Regular
Certificates as follows: (a) if the amount of such Yield Maintenance Charges
exceeds any applicable Yield Maintenance Minimum Amount, (x) the amount of such
Yield Maintenance Charges that would have been payable with respect to such
Specially Designated Co-op Mortgage Loan if the related Mortgage Rate was equal
to the related REMIC I Net Mortgage Rate with respect to such Mortgage Loan
(calculated without regard to any Yield Maintenance Minimum Amount) will be
distributed as set forth above, and (y) the amount of such Yield Maintenance
Charges actually payable during such Collection Period in excess of the amount
to be distributed pursuant to clause (x) will be distributed to the Holders of
the Class X-Y Certificates; (b) if the amount of such Yield Maintenance Charges
equals any applicable Yield Maintenance Minimum Amount, such Yield Maintenance
Charges shall be distributed as follows: (x) 50% to the Holders of the Class
A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class X Certificates,
allocable among such Classes as set forth in the paragraphs above, and (y) 50%
to the Holders of the Class X-Y Certificates; and (c) notwithstanding the
foregoing, Prepayment Premiums collected during any Collection Period with
respect to any Specially Designated Co-op Mortgage Loan shall be distributed as
follows: (a) 50% to the Holders of the Class A-1, Class A-1A, Class A-2, Class
A-3, Class A-4, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H and Class X Certificates, allocable among such Classes as
set forth in the paragraph above, and (b) 50% to the Holders of the Class X-Y
Certificates.
ARTICLE VII
CERTAIN MATTERS CONCERNING THE TRUSTEE, THE CERTIFICATE
REGISTRAR, AND THE PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent
(a) The Trustee and the Paying Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Paying Agent. Any permissive right of the Trustee or the Paying Agent
provided for in this Agreement shall not be construed as a duty of the Trustee
or the Paying Agent. The Trustee shall exercise such of the rights and powers
vested in it by this Agreement and following the occurrence and during the
continuation of any Event of Default hereunder, the Trustee shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent, as the case may
be, which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they on their face
conform to the requirements of this Agreement; provided that the Trustee or the
Paying Agent, as the case may be, shall not be responsible for the accuracy or
content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Master Servicers or any
other Person to it pursuant to this Agreement. If any such instrument is found
on its face not to conform to the requirements of this Agreement, the Trustee or
the Paying Agent shall request the providing party to correct the instrument and
if not so corrected, the Trustee shall inform the Certificateholders.
(c) None of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Persons shall have any liability to the Trust
or the Certificateholders arising out of or in connection with this Agreement,
except for their respective negligence or willful misconduct. No provision of
this Agreement shall be construed to relieve the Trustee, the Paying Agent or
any of their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Persons from
liability for their own negligent action, their own negligent failure to act or
their own willful misconduct or bad faith; provided that:
(i) none of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall be personally
liable with respect to any action taken, suffered or omitted to be taken by
it in its reasonable business judgment in accordance with this Agreement or
at the direction of Holders of Certificates evidencing not less than a
majority of the outstanding Certificate Balance of the Certificates;
(ii) no provision of this Agreement shall require either the Trustee or
the Paying Agent 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;
(iii) none of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall be responsible for
any act or omission of any Master Servicer, any Special Servicer, the
Depositor or any Seller, or for the acts or omissions of each other,
including, without limitation, in connection with actions taken pursuant to
this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any forms or
plans of liquidation in connection with any REMIC Pool shall not constitute
a representation by the Trustee or the Paying Agent as to the adequacy of
such form or plan of liquidation;
(v) neither the Trustee nor the Paying Agent shall be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or Paying Agent, as applicable, in
accordance with this Agreement. In such event, all legal expense and costs
of such action shall be expenses and costs of the Trust and the Trustee and
the Paying Agent shall be entitled to be reimbursed therefor from the
Certificate Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Paying Agent shall be charged with
knowledge of any failure by any Master Servicer or any Special Servicer or
by each other to comply with its obligations under this Agreement or any
act, failure, or breach of any Person upon the occurrence of which the
Trustee or the Paying Agent may be required to act, unless a Responsible
Officer of the Trustee or the Paying Agent, as the case may be, obtains
actual knowledge of such failure.
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and 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,
appraisal, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(ii) the Trustee and the Paying Agent each may consult with counsel and
the advice of such counsel and 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 with
such advice or Opinion of Counsel;
(iii) none of the Trustee, the Paying Agent or any of their respective
partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Persons shall be personally
liable for any action taken, suffered or omitted by such Person in its
reasonable business judgment and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Agreement;
(iv) the Trustee and the Paying Agent shall not be under any obligation
to exercise any remedies after default as specified in this Agreement or to
institute, conduct or defend any litigation hereunder or relating hereto or
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document (provided the same
appears regular on its face), unless requested in writing to do so by
Holders of at least 25% of the Aggregate Certificate Balance of the
Certificates then outstanding, provided that, if the payment within a
reasonable time to the Trustee or the Paying Agent, as applicable, of the
costs, expenses or liabilities likely to be incurred by it in connection
with the foregoing is, in the opinion of such Person not reasonably assured
to such Person by the security afforded to it by the terms of this
Agreement, such Person may require reasonable indemnity against such expense
or liability or payment of such estimated expenses as a condition to
proceeding. The reasonable expenses of the Trustee or the Paying Agent, as
applicable, shall be paid by the Certificateholders requesting such
examination;
(v) the Trustee and the Paying Agent each may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, which agents or attorneys shall have any or all
of the rights, powers, duties and obligations of the Trustee and the Paying
Agent conferred on them by such appointment; provided that each of the
Trustee and the Paying Agent, as the case may be, shall continue to be
responsible for its duties and obligations hereunder and shall not be liable
for the actions or omissions of any Master Servicer, any Special Servicer,
the Depositor or the actions or omissions of each other;
(vi) neither the Trustee nor the Paying Agent shall be required to
obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Paying Agent shall be required to
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such liability is not assured to it;
(viii) neither the Trustee nor the Paying Agent shall be liable for any
loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the Trustee
nor the Paying Agent shall be required to post any surety or bond of any
kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither the Trustee nor the Paying Agent
shall be responsible for any act or omission of any Master Servicer, any
Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
(e) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
(f) If, in connection with any Distribution Date, the Trustee or Paying
Agent has reported to the Depository the anticipated amount of the distribution
to be made to the Depository on such Distribution Date and the timing of the
receipt from a Master Servicer of any Principal Prepayment or Balloon Payment
requires modification of such anticipated amount of the distribution to be made
to the Depository, the Trustee or Paying Agent will use commercially reasonable
efforts to cause the Depository to revise the amount of the distribution on a
timely basis so that such Principal Prepayments or Balloon Payments will be
included in the Available Distribution Amount for such Distribution Date. None
of the Trustee, the Paying Agent, the Master Servicers and the Special Servicers
will be liable or held responsible for any resulting delay (or claims by the
Depository resulting therefrom) in the making of such distribution to
Certificateholders.
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans
The Trustee and the Paying Agent each makes no representations as to
the validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC Regular Certificates or
Residual Certificates (other than the Certificate of Authentication on the
Certificates if the Trustee is the Authenticating Agent) or of any Mortgage
Loan, Assignment of Mortgage or related document except for the representations
and covenants set forth in Section 7.16. Neither the Trustee nor the Paying
Agent shall be accountable for the use or application by the Depositor or any
Master Servicer or any Special Servicer or by each other of any of the
Certificates or any of the proceeds of such Certificates, or for the use or
application by the Depositor or any Master Servicer or any Special Servicer or
by each other of funds paid in consideration of the assignment of the Mortgage
Loans to the Trust or deposited into the Distribution Account or any other fund
or account maintained with respect to the Certificates or any account maintained
pursuant to this Agreement or for investment of any such amounts. No recourse
shall be had for any claim based on any provisions of this Agreement, the
Private Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement, the Prospectus or the Certificates (except with respect
to the Trustee and the Paying Agent to the extent of information furnished by
the Trustee and the Paying Agent under, with respect to the Preliminary
Prospectus Supplement, the information contained therein under the headings
"SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties and Dates--Trustee" (only
with respect to the first sentence thereunder), "SUMMARY OF FREE WRITING
PROSPECTUS--Relevant Parties and Dates--Paying Agent" (only with respect to the
first sentence thereunder), "TRANSACTION PARTIES--The Trustee and Custodian"
(with respect to the first four paragraphs and the sixth paragraph) and
"TRANSACTION PARTIES--The Paying Agent, Certificate Registrar and Authenticating
Agent" (only with respect to the first through ninth paragraphs thereunder), and
with respect to the Final Prospectus Supplement (including the Final Prospectus
Supplement as included as Exhibit A to the Private Placement Memorandum), the
information contained therein under the headings "SUMMARY OF PROSPECTUS
SUPPLEMENT--Relevant Parties and Dates--Trustee" (only with respect to the first
sentence thereunder), "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant Parties and
Dates--Paying Agent" (only with respect to the first sentence thereunder),
"TRANSACTION PARTIES--The Trustee and Custodian" (with respect to the first four
paragraphs and the sixth paragraph) and "TRANSACTION PARTIES--The Paying Agent,
Certificate Registrar and Authenticating Agent") (only with respect to the first
through ninth paragraphs thereunder), the Mortgage Loans or the assignment
thereof against the Trustee or the Paying Agent in such Person's individual
capacity and any such claim shall be asserted solely against the Trust or any
indemnitor who shall furnish indemnity as provided herein. None of the Trustee
or the Paying Agent shall be liable for any action or failure of any action by
the Depositor or any Master Servicer (or any Additional Servicer, Sub-Servicer
or subcontractor engaged thereby), any Special Servicer (or any Additional
Servicer, Sub-Servicer or subcontractor engaged thereby), the Underwriters, the
Initial Purchaser, any Seller or by each other hereunder. None of Trustee or the
Paying Agent shall at any time have any responsibility or liability for or with
respect to the legality, validity or enforceability of the Mortgages or the
Mortgage Loans, or the perfection and priority of the Mortgages or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon; the validity of the assignment
of the Mortgage Loans to the Trust or of any intervening assignment; the
completeness of the Mortgage Loans; the performance or enforcement of the
Mortgage Loans (other than if the Trustee shall assume the duties of any Master
Servicer); the compliance by the Depositor, each Seller, the Mortgagor or any
Master Servicer (or any Additional Servicer, Sub-Servicer or subcontractor
engaged thereby), any Special Servicer (or any Additional Servicer, Sub-Servicer
or subcontractor engaged thereby), the Underwriters or the Initial Purchaser or
by each other with any warranty or representation made under this Agreement or
in any related document or the accuracy of any such warranty or representation
made under this Agreement or in any related document prior to the receipt by a
Responsible Officer of the Trustee of notice or other discovery of any non
compliance therewith or any breach thereof; any investment of monies by or at
the direction of any Master Servicer or any Special Servicer or any loss
resulting therefrom; the failure of any Master Servicer (or any Additional
Servicer, Sub-Servicer or subcontractor engaged thereby) or any Special Servicer
(or any Additional Servicer, Sub-Servicer or subcontractor engaged thereby) to
act or perform any duties required of it on behalf of the Trustee hereunder; or
any action by the Trustee taken at the instruction of any Master Servicer or any
Special Servicer.
Section 7.4 The Trustee and the Paying Agent May Own Certificates
Each of the Trustee and the Paying Agent in its individual or any other
capacity may become the owner or pledgee of Certificates with the same rights it
would have if it were not the Trustee or the Paying Agent, as the case may be.
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent
The Trustee hereunder shall at all times be (i) an institution insured
by the FDIC, (ii) a corporation, national bank or national banking association
organized and doing business under the laws of the United States of America and
any state thereof, authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "A-1" (without regard to plus or minus) by S&P and "F-1" by Fitch and whose
long term senior unsecured debt is at all times rated not less than "AA-" by
Fitch and "A+" by S&P. 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 case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.6.
Notwithstanding the foregoing, if the Trustee meets the provisions of this
Section 7.5, but does not meet the provisions of (iii) above, the Trustee shall
be deemed to meet the provisions of (iii) if it appoints a fiscal agent as a
back-up liquidity provider; provided that such fiscal agent shall meet the
requirements of Section 7.5(iii) above and Section 7.18 herein.
The Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers and shall be rated at
least "A" by S&P and Fitch, unless and to the extent Rating Agency Confirmation
is obtained.
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicers, the Special Servicers and the Rating
Agencies; provided that such resignation shall not be effective until its
successor shall have accepted the appointment. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee or paying
agent, as the case may be. If no successor trustee or paying agent shall have
been so appointed, as the case may be, and shall have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or the Paying Agent, as the case may be, may petition any court of
competent jurisdiction for the appointment of a successor trustee or paying
agent, as the case may be. It shall be a condition to the appointment of a
successor trustee that such entity satisfies the eligibility requirements set
forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a 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, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) if the Trustee fails to perform (or acts
with negligence, bad faith or willful misconduct in performing) any of its
obligations set forth in Article XIII (other than the failure to file any
Exchange Act report due to the non-receipt or the untimely receipt of the
Exchange Act reportable information from the Depositor, the applicable Master
Servicer (or any Additional Servicer, Sub-Servicer or subcontractor engaged
thereby) or applicable Special Servicer (or any Additional Servicer,
Sub-Servicer or subcontractor engaged thereby)), then the Depositor shall (in
the case of clauses (i) through (iv) above) and may (in the case of clause (v)
above) send a written notice of termination to the Trustee (which notice shall
specify the reason for such termination) and remove such Trustee and the
Depositor shall appoint a successor Trustee by written instrument, one copy of
which instrument shall be delivered to the Trustee so removed, one copy to the
successor Trustee, and one copy to each of the Master Servicers and the Rating
Agencies. Such succession shall take effect after a successor trustee has been
appointed and has accepted such appointment. In the case of the removal of the
initial Trustee, the Depositor shall also remove the Paying Agent.
(c) If at any time (i) the Paying Agent shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), (iv) the continuation of the Paying Agent as such would result in
a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by any Rating Agency, (v) if the Paying Agent shall fail (other than by reason
of a Master Servicer's or Special Servicer's failure to timely perform its
obligations hereunder), to timely publish any report to be delivered, published
or otherwise made available by the Paying Agent pursuant to Sections 5.4 and 5.5
and such failure shall continue unremedied for a period of five days, (vi) if
the Paying Agent should fail to make distributions required pursuant to Section
5.3, Section 10.1 or Article VI or (vii) if the Paying Agent fails to perform
(or acts with negligence, bad faith or willful misconduct in performing) any of
its obligations set forth in Article XIII, then the Depositor or the Trustee
shall shall (in the case of clauses (i) through (vi) above) and may (in the case
of clauses (v) through (vii) above) send a written notice of termination to the
Paying Agent (which notice shall specify the reason for such termination) and
remove such Paying Agent and the Depositor shall appoint a successor Paying
Agent by written instrument, one copy of which instrument shall be delivered to
the Paying Agent so removed, one copy to the successor Paying Agent, and one
copy to each of the Trustee, the Master Servicers, the Special Servicers and the
Rating Agencies.
(d) The Holders of more than 50% of the Aggregate Certificate Balance
of the Certificates then outstanding may, without cause, at any time upon
written notice to the Trustee or the Paying Agent, as the case may be, and to
the Depositor remove the Trustee or the Paying Agent, as the case may be, by
such written instrument, signed by such Holders or their attorney-in-fact duly
authorized, one copy of which instrument shall be delivered to the Depositor and
one copy to the Trustee or the Paying Agent, as the case may be, so removed; the
Depositor shall thereupon use its best efforts to appoint a successor Trustee or
the Paying Agent, as the case may be, in accordance with this Section.
(e) Any resignation or removal of the Trustee or the Paying Agent, as
the case may be, and appointment of a successor trustee or paying agent pursuant
to any of the provisions of this Section shall become effective upon acceptance
of appointment by the successor trustee or paying agent, as the case may be, as
provided in Section 7.7. Upon any succession of the Trustee or the Paying Agent
under this Agreement, the predecessor Trustee or Paying Agent, as the case may
be, shall be entitled to the payment of compensation and reimbursement agreed to
under this Agreement for services rendered and expenses incurred. The Trustee or
the Paying Agent shall not be liable for any action or omission of any successor
Trustee or Paying Agent, as the case may be.
Section 7.7 Successor Trustee or Paying Agent
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein, as the case may be. The
predecessor Trustee or Paying Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Paying Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Paying Agent in the
administration hereof as may be reasonably requested by the successor Trustee or
Paying Agent, as applicable, and shall thereupon be discharged from all duties
and responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Paying Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Paying
Agent as provided in this Section, the successor Trustee or Paying Agent shall
mail notice of the succession of such Trustee or Paying Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Paying Agent. If the successor Trustee or Paying Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Paying Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee or Paying Agent that has resigned or been removed or
terminated, as contemplated by Section 7.6, to a successor Trustee or Paying
Agent, including those associated with transfer of the Mortgage Files and other
documents and statements held by the predecessor Trustee or Paying Agent to the
successor Trustee or Paying Agent, as contemplated by Section 7.6(a), shall be
paid by: (i) the predecessor Trustee or Paying Agent, if such predecessor
Trustee or Paying Agent has resigned in accordance with Section 7.6(a) or has
been removed in accordance with Sections 7.6(b) or 7.6(c), as applicable; (ii)
the Certificateholders that effected the removal, if the predecessor Trustee or
Paying Agent has been removed without cause in accordance with Section 7.6(d);
and (iii) the Trust, if such costs and expenses are not paid by the predecessor
Trustee or Paying Agent or the subject Certificateholders, as contemplated by
the immediately preceding clauses (i) and (ii), within 90 days after they are
incurred (provided that such predecessor Trustee or predecessor Paying Agent or
such subject Certificateholders, as applicable, shall remain liable to the Trust
for such costs and expenses).
Section 7.8 Merger or Consolidation of Trustee or Paying Agent
Any Person into which the Trustee or Paying Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Trustee or Paying Agent shall
be a party, or any Persons succeeding to the business of such Trustee or Paying
Agent, shall be the successor of such Trustee or Paying Agent, as the case may
be, hereunder, as applicable, provided that such Person shall be eligible under
the provisions of Section 7.5, 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.
Notwithstanding the foregoing, neither the Trustee nor the Paying Agent
may remain the Trustee or the Paying Agent, as the case may be, under this
Agreement after (x) being merged or consolidated with or into any Person that is
a Prohibited Party, or (y) transferring all or substantially all of its assets
to any Person if such Person is a Prohibited Party, except to the extent (i) the
Trustee or Paying Agent, as the case may be, is the surviving entity of such
merger, consolidation or transfer or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld.
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by any Master Servicer or any Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees, co
trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further, that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate trustee appointed by the
Depositor or the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from time
to time appoint one or more independent third-party agents to perform all or any
portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to a Master 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 or any portion thereof in any such jurisdiction, shall be
exercised and performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Principal Amount of the
Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of
this Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become 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.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not be
unreasonably withheld, the Trustee, at its sole cost and expense, may appoint at
any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
Section 7.10 Authenticating Agents
(a) The Trustee shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
Section 7.11 Indemnification of the Trustee and the Paying Agent
(a) The Trustee, the Certificate Registrar, the Paying Agent (in each
case, whether in its individual capacity or in its capacity as Trustee,
Certificate Registrar or Paying Agent, as the case may be) and each of its
respective partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents and Controlling Persons shall be entitled to
indemnification from the Trust for any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
incurred without negligence or willful misconduct on their respective part,
arising out of, or in connection with this Agreement, the Mortgage Loans, the
Certificates and the acceptance or administration of the trusts or duties
created hereunder (including, without limitation, any unanticipated loss,
liability or expense incurred in connection with any action or inaction of any
Master Servicer, any Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, is unable to recover within a
reasonable period of time such amount from such third party pursuant to this
Agreement) including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent
(in each case, whether in its individual capacity or in its capacity as Trustee,
Certificate Registrar or Paying Agent, as the case may be) and each of their
respective partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents and Controlling Persons shall be entitled to
indemnification from the Trust for any unanticipated loss, liability or expense
incurred in connection with the provision by the Trustee, the Certificate
Registrar and the Paying Agent of the reports required to be provided by it
pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be, shall have given the
Depositor, the applicable Master Servicer, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a
Responsible Officer of the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, shall have knowledge thereof; provided, however,
that failure to give such notice to the Depositor, such Master Servicer, the
Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Certificate Registrar's or Paying Agent's, as the case may be,
rights to indemnification herein unless the Depositor's defense of such
claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense
unless the Depositor or any affiliate thereof is an adverse party to the
Trustee in such legal proceeding; and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
entered into without the prior consent of the Depositor, which consent shall
not be unreasonably withheld or delayed.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Trustee, the Certificate Registrar or the Paying Agent, as the case
may be, their respective partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents or Controlling Person may
become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement or the Prospectus, or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
partners, representatives, Affiliates, members, managers, directors, officers,
employees, agents or Controlling Person for any legal and other expenses
reasonably incurred by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, or any such partners, representatives, Affiliates,
members, managers, directors, officers, employees, agents or Controlling Person
in investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Depositor shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission made in any such Private Placement
Memorandum, Preliminary Prospectus Supplement, Final Prospectus Supplement or
Prospectus in reliance upon and in conformity with written information
concerning the Trustee, the Certificate Registrar or the Paying Agent, as the
case may be, furnished to the Depositor by or on behalf of such Person
specifically for inclusion therein. It is hereby expressly agreed that the only
written information provided by the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, for inclusion in the Preliminary Prospectus
Supplement and Final Prospectus Supplement is set forth, with respect to the
Preliminary Prospectus Supplement, under the headings "SUMMARY OF FREE WRITING
PROSPECTUS--Relevant Parties and Dates--Trustee" (only with respect to the first
sentence thereunder), "SUMMARY OF FREE WRITING PROSPECTUS--Relevant Parties and
Dates--Paying Agent" (only with respect to the first sentence thereunder),
"TRANSACTION PARTIES--The Trustee and Custodian" (with respect to the first four
paragraphs and the sixth paragraph) and "TRANSACTION PARTIES--The Paying Agent,
Certificate Registrar and Authenticating Agent" (only with respect to the first
through ninth paragraphs thereunder), and with respect to the Final Prospectus
Supplement (including the Final Prospectus Supplement as included as Exhibit A
to the Private Placement Memorandum), the information contained therein under
the headings "SUMMARY OF PROSPECTUS SUPPLEMENT--Relevant Parties and
Dates--Trustee" (only with respect to the first sentence thereunder), "SUMMARY
OF PROSPECTUS SUPPLEMENT--Relevant Parties and Dates--Paying Agent" (only with
respect to the first sentence thereunder), "TRANSACTION PARTIES--The Trustee and
Custodian" (with respect to the first four paragraphs and the sixth paragraph)
and "TRANSACTION PARTIES--The Paying Agent, Certificate Registrar and
Authenticating Agent") (only with respect to the first through ninth paragraphs
thereunder). The Trustee, the Certificate Registrar or the Paying Agent, as the
case may be, shall immediately notify the Depositor and the Sellers if a claim
is made by a third party with respect to this Section 7.11(c) entitling such
Person, its partners, representatives, Affiliates, members, managers, directors,
officers, employees, agents or Controlling Person to indemnification hereunder,
whereupon the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to such Person) 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 the
Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
their respective partners, representatives, Affiliates, members, managers,
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 7.11(c), unless the Depositor's defense of
such claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or removal
of the Trustee or the Paying Agent. The Depositor shall not be indemnified by
the Trust for any expenses incurred by the Depositor arising from any violation
or alleged violation of the 1933 Act or 1934 Act by the Depositor.
(d) The 2007-HQ11 Trustee and the 2007-HQ11 Paying Agent and any
partner, representative, Affiliate, member, manager, director, officer, employee
or agent of the 2007-HQ11 Trustee and the 2007-HQ11 Paying Agent shall be
indemnified by the Trust and held harmless against (i) the Trust's pro rata
share of any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to the 2007-HQ11 Pooling
and Servicing Agreement and this Agreement, and relating to the
Non-Trust-Serviced Pari Passu Loan (but excluding any such losses allocable to
the Non-Trust Serviced Companion Loan), reasonably requiring the use of counsel
or the incurring of expenses other than any losses incurred by reason of the
2007-HQ11 Trustee's or the 2007-HQ11 Paying Agent's willful misfeasance, bad
faith or negligence, as the case may be, in the performance of its duties under
the 2007-HQ11 Pooling and Servicing Agreement and (ii) any claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses relating to the Non-Trust-Serviced
Pari Passu Loan, but only to the extent that such losses arise out of the
actions of the Master Servicers, the Special Servicers or the Trustee, and only
to the extent that such actions are in violation of the such party's duties
under the provisions of this Agreement and to the extent that such actions are
the result of such party's negligence, bad faith or willful misconduct.
Section 7.12 Fees and Expenses of Trustee and the Paying Agent
The Trustee shall be entitled to receive the Trustee Fee, pursuant to
Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), 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 respectively, hereunder of the
Trustee and the Paying Agent. The Trustee and the Paying Agent shall also be
entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee and the Paying Agent in accordance
with any of the provisions of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and
other Persons not regularly in its employ), not including expenses incurred in
the ordinary course of performing its duties as Trustee or Paying Agent,
respectively, hereunder, and except any such expense, disbursement or advance as
may arise from the negligence or bad faith of such Person or which is the
responsibility of the Holders of the Certificates hereunder. The provisions of
this Section 7.12 shall survive any termination of this Agreement and the
resignation or removal of the Trustee or the Paying Agent.
Section 7.13 Collection of Moneys
Except as otherwise expressly provided in this Agreement, the Trustee
and the Paying Agent may demand payment or delivery of, and shall receive and
collect, all money and other property payable to or receivable by the Trustee or
the Paying Agent, as the case may be, pursuant to this Agreement. The Trustee or
the Paying Agent, as the case may be, shall hold all such money and property
received by it as part of the Trust and shall distribute it as provided in this
Agreement. If the Trustee or the Paying Agent, as the case may be, shall not
have timely received amounts to be remitted with respect to the Mortgage Loans
from the applicable Master Servicer, the Trustee or the Paying Agent, as the
case may be, shall request that the applicable Master Servicer make such
distribution as promptly as practicable or legally permitted. If the Trustee or
the Paying Agent, as the case may be, shall subsequently receive any such
amount, it may withdraw such request.
Section 7.14 Trustee to Act; Appointment of Successor
(a) On and after the time a Master Servicer is terminated pursuant to
this Agreement in accordance with Sections 8.28 and 8.29, the Trustee shall be
the successor in all respects to such Master Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties and
liabilities relating thereto and arising thereafter placed on such Master
Servicer by the terms and provisions of this Agreement; provided that, any
failure to perform such duties or responsibilities caused by such Master
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of such Master
Servicer contained in this Agreement or (ii) any obligation incurred by such
Master Servicer prior to its termination or resignation (including, without
limitation, such Master Servicer's obligation to repay losses resulting from the
investment of funds in any account established under this Agreement), except any
ongoing obligations to the Primary Servicers arising after the termination of
such Master Servicer from their servicing rights and obligations under the
applicable Primary Servicing Agreement. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
such Master Servicer in this Agreement. As compensation therefor, the Trustee
shall be entitled to receive all the compensation payable to such Master
Servicer set forth in this Agreement, including, without limitation, the Master
Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to such terminated Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as the
applicable Master Servicer hereunder and under the applicable Primary Servicing
Agreement. Pending any such appointment, the Trustee shall act in such capacity
as hereinabove provided. Any entity designated by the Trustee as successor
Master Servicer may be an Affiliate of the Trustee; provided that such Affiliate
must meet the standards for the Master Servicer as set forth herein. In
connection with such appointment and assumption, 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 subject to Section 8.10. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The terminated Master
Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of such Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume such Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by such Master Servicer in the applicable Certificate
Account and any other account or fund maintained with respect to the
Certificates or thereafter be received by such Master Servicer with respect to
the Mortgage Loans. Neither the Trustee nor any other successor servicer shall
be deemed to be in default hereunder by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by (i)
the failure of the terminated Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, or (ii) restrictions imposed by
any regulatory authority having jurisdiction over such Master Servicer. The
Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in
connection with obtaining such successor Master Servicer by the Trust within 30
days of the Trustee's submission of an invoice with respect thereto, to the
extent such expenses have not been reimbursed by the terminated Master Servicer
as provided herein; such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
(c) On and after the time a Special Servicer is terminated pursuant to
this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to such Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall,
subject to Section 9.21(d), have all the rights and powers and be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on such Special Servicer by the terms and provisions of this
Agreement; provided that, any failure to perform such duties or responsibilities
caused by such Special Servicer's failure to provide required information shall
not be considered a default by the Trustee hereunder. In addition, the Trustee
shall have no liability relating to (i) the representations and warranties of
such Special Servicer contained in this Agreement or (ii) any obligation
incurred by the Special Servicer prior to its termination or resignation. In the
Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to such Special Servicer in this Agreement. As
compensation therefor, the Trustee shall, subject to Section 9.21(d), be
entitled to receive all the compensation payable to such Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation.
(d) Notwithstanding the above, the Trustee may, if the Trustee shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition a
court of competent jurisdiction to appoint, any established commercial or
multifamily mortgage finance institution, special servicer or mortgage servicing
institution having a net worth of not less than $15,000,000, and meeting such
other standards for a successor Special Servicer as are set forth in Section
9.21, and with respect to which Rating Agency Confirmation is obtained, as the
successor to the terminated Special Servicer hereunder in the assumption of all
of the responsibilities, duties or liabilities of a Special Servicer hereunder.
Pending any such appointment, the Trustee shall act in such capacity as
hereinabove provided. Any entity designated by the Trustee as successor Special
Servicer may be an Affiliate of the Trustee; provided that such Affiliate must
meet the standards for a successor Special Servicer set forth herein. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor, subject to Section 9.21(d),
out of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the terminated
Special Servicer under this Agreement. The Trustee and such successor shall take
such actions, consistent with this Agreement as shall be necessary to effectuate
any such succession. The terminated Special Servicer shall cooperate with the
Trustee and any successor Special Servicer in effecting the termination of such
Special Servicer's responsibilities and rights under this Agreement, including,
without limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of
the assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume such Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the terminated Special Servicer in the applicable Certificate Account and any
other account or fund maintained with respect to the Certificates or thereafter
be received by such Special Servicer with respect to the Mortgage Loans. Neither
the Trustee nor any other successor Special Servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
terminated Special Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over such Special Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Special Servicer by the Trust within 30 days of
submission of an invoice with respect thereto but only to the extent such
expenses have not been reimbursed by the terminated Special Servicer as provided
herein; and such expenses paid by the Trust shall be deemed to be an Additional
Trust Expense.
Section 7.15 Notification to Holders
Upon termination of a Master Servicer, the Paying Agent or a Special
Servicer, or appointment of a successor to such Master Servicer, the Paying
Agent or such Special Servicer, the Trustee shall promptly mail notice thereof
by first class mail to the Rating Agencies, the Operating Adviser, the Sellers
and the Certificateholders at their respective addresses appearing on the
Certificate Register.
Section 7.16 Representations and Warranties of the Trustee, the
Certificate Registrar and the Paying Agent
(a) U.S. Bank National Association ("U.S. Bank"), in its capacity as
the Trustee, the Certificate Registrar and the Paying Agent, hereby represents
and warrants as of the date hereof that:
(i) U.S. Bank is a national banking association, duly organized,
validly existing and in good standing under the laws governing its creation
and existence and has full power and authority to own its property, to carry
on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by U.S. Bank of this Agreement have
been duly authorized by all necessary action on the part of U.S. Bank;
neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of,
or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Trustee or its properties that would materially and adversely affect U.S.
Bank's ability to perform its obligations under this Agreement, (ii) the
organizational documents of U.S. Bank, or (iii) the terms of any material
agreement or instrument to which U.S. Bank is a party or by which it is
bound; U.S. Bank is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency, which default would materially and
adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by U.S. Bank of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for U.S. Bank to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by U.S. Bank
and, assuming due authorization, execution and delivery by the other parties
hereto, constitutes a valid and binding obligation of U.S. Bank, enforceable
against U.S. Bank in accordance with its terms, subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as
from time to time in effect, and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and
(v) no litigation is pending or, to U.S. Bank's knowledge, threatened,
against the Trustee that, either in one instance or in the aggregate, would
draw into question the validity of this Agreement, or which would be likely
to impair materially the ability of U.S. Bank to perform under the terms of
this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent
Each of the Trustee and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions
Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond
shall be issued by a Qualified Insurer in form and in amount customary for
trustees or paying agents in similar transactions (unless the Trustee or the
Paying Agent, as the case may be, self insures as provided below). In the event
that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to
be in effect, the Trustee or the Paying Agent, as the case may be, shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Trustee or the Paying Agent, as the case may be, is
not less than "A" as rated by S&P and Fitch, if rated by S&P and Fitch,
respectively, the Trustee or the Paying Agent, as the case may be, may
self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.
Section 7.18 Appointment of a Fiscal Agent
(a) In order to satisfy the eligibility requirements of Section 7.5
(insofar as such requirements relate to ratings), the Trustee may appoint a
fiscal agent (a "Fiscal Agent"). Any Fiscal Agent shall at all times maintain a
long-term unsecured debt rating of no less than "AA-" from Fitch (or "A+" from
Fitch, if such Fiscal Agent's short-term unsecured debt rating is at least "F-1"
by Fitch) and a long-term unsecured debt rating of no less than "AA-" from S&P
(or "A+" from S&P, if such Fiscal Agent's short-term unsecured debt rating is at
least "A-1" by S&P) (or, in the case of either Rating Agency, such other rating
as shall not result in a downgrade, qualification or withdrawal of the rating by
the Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies).
(b) To the extent that the Trustee is required, pursuant to the terms
of this Agreement, to make any Advance, whether as successor master servicer or
otherwise, and has failed to do so in accordance with the terms hereof, any
Fiscal Agent appointed by the Trustee shall make such Advance as and when
required by the terms of this Agreement on behalf the Trustee as if such Fiscal
Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes an
Advance pursuant to this Section 7.18(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust, the Depositor, the Master Servicers or the
Special Servicers.
(d) The obligations of a Fiscal Agent set forth in this Section 7.18 or
otherwise pursuant to this Agreement shall exist only for so long as the Trustee
that appointed it shall act as Trustee hereunder. A Fiscal Agent may resign or
be removed by the Trustee only if and when the existence of such Fiscal Agent is
no longer necessary for such Trustee to satisfy the eligibility requirements of
Section 7.5; provided that a Fiscal Agent shall be deemed to have resigned at
such time as the Trustee that appointed it resigns or is removed as Trustee
hereunder (in which case the responsibility for appointing a successor Fiscal
Agent shall belong to the successor Trustee, and which appointment the successor
Trustee shall use its best efforts to make, insofar as such appointment is
necessary for such successor Trustee to satisfy the eligibility requirements of
Section 7.5). Any successor fiscal agent so appointed shall be required to
execute and deliver to the other parties hereto a written agreement to assume
and perform the duties of a Fiscal Agent set forth in this Agreement; provided
that no such successor shall become Fiscal Agent hereunder unless either (i) it
satisfies the rating requirements of Section 7.18(a) or (ii) the Trustee shall
have received written confirmation from the Rating Agencies that the succession
of such proposed successor fiscal agent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the rating by the Rating Agencies of
any Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto and the
Certificateholders in writing of the appointment, resignation or removal of any
Fiscal Agent.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Master Servicers shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement (subject
to the servicing of the Non-Trust-Serviced Pari Passu Loan by the 2007-HQ11
Master Servicer and the 2007-HQ11 Special Servicer in accordance with the
2007-HQ11 Pooling and Servicing Agreement). The General Master Servicer shall be
the Master Servicer with respect to all the Mortgage Loans (other than the NCB,
FSB Loans and the Non-Trust-Serviced Pari Passu Loan) and other assets in the
Trust (other than the NCB, FSB Trust Assets) and, as such, shall service and
administer such assets as shall be required of the Master Servicer hereunder
with respect to such Trust assets. The NCB Master Servicer shall be the Master
Servicer with respect to the NCB, FSB Trust Assets and, as such, shall service
and administer the NCB, FSB Trust Assets as shall be required of such Master
Servicer hereunder with respect to the NCB, FSB Trust Assets. With respect to
the Non-Trust-Serviced Pari Passu Loan, the General Master Servicer shall
enforce the rights of the Trustee, as holder of the Non-Trust Serviced Pari
Passu Loan, under the Co-Lender Agreement and the 2007-HQ11 Pooling and
Servicing Agreement; provided, however, that any expenses incurred by the
General Master Servicer in connection with such enforcement shall be a Servicing
Advance. Certain of the provisions of this Article VIII make explicit reference
to their non-applicability to Non-Trust-Serviced Pari Passu Loan;
notwithstanding such explicit references, references to "Mortgage Loans" and
"Mortgaged Property" contained in this Article VIII, unless otherwise specified
to include the Non-Trust-Serviced Pari Passu Loan, the obligations of the Master
Servicers or Special Servicers pursuant to this Agreement, shall be construed to
exclude the Non-Trust-Serviced Pari Passu Loan and any related real property
(but any other terms that are defined in Article I and used in this Article VIII
shall be construed according to such definitions without regard to this
sentence).
Notwithstanding anything contained in Article IV or in this Article
VIII to the contrary, the General Master Servicers will not be required to make
any Servicing Advances with respect to the Non-Trust-Serviced Pari Passu Loan.
In connection with such servicing and administration, each Master
Servicer shall service in accordance with the Servicing Standard; provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the applicable Master Servicer of the collectibility of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
applicable Master Servicer, including with respect to Master Servicing Fees or
the right to be reimbursed for Advances.
(b) The applicable Master Servicer, in the case of an event specified
in clause (x) of this subclause (b), and the applicable Special Servicer, in the
case of an event specified in clause (y) of this subclause (b), shall each send
a written notice to the other and to the Trustee, the Operating Adviser and the
respective Seller within two Business Days after becoming aware (x) that a
Servicing Transfer Event has occurred with respect to a Mortgage Loan or (y)
that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice
shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if any of the applicable Master Servicer, the applicable Special
Servicer or the applicable Primary Servicer has actual knowledge of any event
giving rise to a claim under an Environmental Insurance Policy, such Person
shall notify the related Master Servicer, the related Special Servicer and the
related Primary Servicer, as applicable, to such effect and such Master Servicer
shall take reasonable actions as are in accordance with the Servicing Standard
and the terms and conditions of such Environmental Insurance Policy to make a
claim thereunder and achieve the payment of all amounts to which the Trust is
entitled thereunder. Any legal fees or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with any such claim shall
be paid by, and reimbursable to, the applicable Master Servicer or the
applicable Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a Mortgage
Loan that is the subject of an Environmental Insurance Policy, the applicable
Master Servicer shall give prompt written notice of such extension to the
insurer under the Environmental Insurance Policy and shall execute such
documents as are reasonably required by such insurer to procure an extension of
such policy (if available).
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicers
Each Master Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless a Master Servicer self insures as
provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the applicable Master
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long term rating of a Master Servicer (or its
corporate parent) is not in any event less than "A" as rated by S&P and Fitch,
respectively, such Master Servicer may self insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicers' General Power and Duties
(a) Each Master Servicer shall service and administer the Mortgage
Loans (other than the Non-Trust-Serviced Pari Passu Loan) it is required to
service hereunder and shall, subject to the terms, conditions and limitations
set forth in Sections 8.19, 8.27, 9.39, 14.1, 14.2 and Article XII hereof and as
otherwise provided herein and by the Code, have full power and authority to do
any and all things which it may deem necessary or desirable in connection with
such servicing and administration in accordance with the Servicing Standard. In
addition, subject to Section 14.2 hereof, each Master Servicer, consistent with
the Servicing Standard, may waive (i) any default interest and Late Fees with
respect to its Mortgage Loans that are not Specially Serviced Mortgage Loans and
(ii) default interest on a Balloon Payment (but only with the consent of the
applicable Special Servicer); provided that, to the extent the applicable Master
Servicer waives any default interest and Late Fees, any outstanding Advance
Interest with respect to the related Mortgage Loan that would otherwise have
been paid out of such default interest and Late Fees shall be paid out of the
additional servicing compensation payable to such Master Servicer with respect
to that Mortgage Loan; and provided, further, that if no additional servicing
compensation is available to offset the outstanding Advance Interest with
respect to the Mortgage Loan that would otherwise be offset by the default
interest and Late Fees, then the applicable Master Servicer shall not waive such
default interest and Late Fees unless it is the first such waiver with respect
to the subject Mortgage Loan.
Notwithstanding the above, and subject to the restrictions set forth in
Section 14.2 hereof, the Master Servicers shall have no power to (i) waive any
Prepayment Premiums or (ii) consent to any modification of a Money Term. In
addition, subject to the Servicing Standard, the Master Servicers shall not
accept any prepayment of principal with respect to any Mortgage Loan on any date
other than the related Due Date unless (i) such payment is accompanied by a
payment of the interest due with respect to such Mortgage Loan up to the next
succeeding Due Date, (ii) such prepayment does not result in the Trust incurring
a Prepayment Interest Shortfall or (iii) such prepayment is required to be
permitted under the related Mortgage Loan documents on a date other than the
related Due Date. Nothing contained in this Agreement shall limit the ability of
the Master Servicers to lend money to (to the extent not secured, in whole or in
part, by any Mortgaged Property, except for a Co-op Mortgage Loan as to which
the NCB, FSB Subordinate Debt Conditions have been satisfied in which case a
subordinate loan may be secured by a mortgage lien on the related Mortgaged
Property), accept deposits from and otherwise generally engage in any kind of
business or dealings with any Mortgagor as though the Master Servicer were not a
party to this Agreement or to the transactions contemplated hereby; provided,
however, that this sentence shall not modify the Servicing Standard.
(b) No Master Servicer shall be obligated to service and administer the
Mortgage Loans which have become and continue to be Specially Serviced Mortgage
Loans, except as specifically provided herein. Such Master Servicer shall be
required to make all calculations and prepare all reports required hereunder
with respect to such Specially Serviced Mortgage Loans (other than calculations
and reports expressly required to be made by the applicable Special Servicer
hereunder) as if no Servicing Transfer Event had occurred and shall continue to
collect all Scheduled Payments, make Servicing Advances as set forth herein,
make P&I Advances as set forth herein and render such incidental services with
respect to such Specially Serviced Mortgage Loans, all as are specifically
provided for herein, but shall have no other servicing or other duties with
respect to such Specially Serviced Mortgage Loans. Each Master Servicer shall
give notice within one Business Day to the applicable Special Servicer of any
collections it receives from any Specially Serviced Mortgage Loans, subject to
changes agreed upon from time to time by such Special Servicer and such Master
Servicer. Each Special Servicer shall instruct within one Business Day after
receiving such notice the applicable Master Servicer on how to apply such funds.
The applicable Master Servicer within one Business Day after receiving such
instructions shall apply such funds in accordance with the applicable Special
Servicer's instructions. Each Mortgage Loan that becomes a Specially Serviced
Mortgage Loan shall continue as such until such Mortgage Loan becomes a
Rehabilitated Mortgage Loan. No Master Servicer shall be required to initiate
extraordinary collection procedures or legal proceedings with respect to any
Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Powers of Attorney attached hereto as Exhibit S-1A and Exhibit
S-1B. The Master Servicers, shall promptly notify the Trustee of the recording
of any document on behalf of the Trustee under such Power-of-Attorney. From time
to time until the termination of the Trust, upon receipt of additional
unexecuted powers of attorney from the Master Servicers or the Special
Servicers, the Trustee shall execute and return to any Master Servicer, any
Special Servicer or any Primary Servicer any additional powers of attorney and
other documents necessary or appropriate to enable such Master Servicer and such
Special Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. Each Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by a Master Servicer. Notwithstanding
anything contained herein to the contrary, neither the Master Servicers nor the
Special Servicers shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding directly relating to the servicing of the Mortgage
Loans solely under the Trustee's name without indicating the Master Servicer's
or Special Servicer's, as applicable, representative capacity, (ii) initiate any
other action, suit or proceeding not directly relating to the servicing of the
Mortgage Loans (including but not limited to actions, suits or proceedings
against Certificateholders, or against the Depositor or the Sellers for breaches
of representations and warranties) solely under the Trustee's name, (iii) engage
counsel to represent the Trustee in any action, suit or proceeding not directly
related to the servicing of the Mortgage Loans (including but not limited to
actions, suits or proceedings against Certificateholders, or against the
Depositor or the Sellers for breaches of representations and warranties, or (iv)
prepare, execute or deliver any government filings, forms, permits,
registrations or other documents or take any other actions with the intent to
cause, and that actually causes, the Trustee to be registered to do business in
any state. The limitations of the preceding clause shall not be construed to
limit any duty or obligation imposed on the Trustee under any other provision of
this Agreement.
(d) Each Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties and other than
the Non-Trust-Serviced Pari Passu Loan).
(e) Each Master Servicer (or any Primary Servicer on its behalf) shall
segregate and hold all funds collected and received pursuant to any applicable
Mortgage Loan (other than the Non-Trust-Serviced Pari Passu Loan) constituting
Escrow Amounts separate and apart from any of its own funds and general assets
and shall establish and maintain one or more segregated custodial accounts
(each, an "Escrow Account") into which all Escrow Amounts shall be deposited
within one Business Day after receipt. Each Escrow Account shall be an Eligible
Account except with respect to Mortgage Loans identified on Schedule VII for
which Escrow Accounts shall be transferred to Eligible Accounts at the earliest
date permitted under the related Mortgage Loan documents. Each Master Servicer
shall also deposit into each applicable Escrow Account any amounts representing
losses on Eligible Investments pursuant to the immediately succeeding paragraph
and any Insurance Proceeds or Liquidation Proceeds which are required to be
applied to the restoration or repair of any Mortgaged Property pursuant to the
related Mortgage Loan. Each Escrow Account shall be maintained in accordance
with the requirements of the related Mortgage Loan and in accordance with the
Servicing Standard. Withdrawals from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow Amounts for
the related Mortgage Loan;
(ii) to transfer funds to the applicable Certificate Account (or any
sub-account thereof) to reimburse the applicable Master Servicer for any
Advance (or the Trust for any Unliquidated Advance) relating to Escrow
Amounts, but only from amounts received with respect to the related Mortgage
Loan which represent late collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of
this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest or
investment income earned on funds deposited in the applicable Escrow Account
if such income is required to be paid to the related Mortgagor under
applicable law or by the terms of the Mortgage Loan, or otherwise to the
applicable Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding two sentences, (i) each Master
Servicer may direct any depository institution or trust company in which the
applicable Escrow Accounts are maintained to invest the funds held therein in
one or more Eligible Investments; provided, however, that such funds shall be
either (x) immediately available or (y) available in accordance with a schedule
which will permit such Master Servicer to meet the payment obligations for which
the applicable Escrow Account was established; (ii) each Master Servicer shall
be entitled to all income and gain realized from any such investment of funds as
additional servicing compensation; and (iii) each Master Servicer shall deposit
from its own funds in the applicable Escrow Account the amount of any loss
incurred in respect of any such investment of funds on or before the next Master
Servicer Remittance Date. The Master Servicers shall not direct the investment
of funds held in any Escrow Account and retain the income and gain realized
therefrom if the terms of the related Mortgage Loan or applicable law permit the
Mortgagor to be entitled to the income and gain realized from the investment of
funds deposited therein, and the Master Servicers shall not be required to
invest amounts on deposit in applicable Escrow Accounts in Eligible Investments
or Eligible Accounts to the extent that the Master Servicers are required by
either law or under the terms of any related Mortgage Loan to deposit or invest
(or the Mortgagor is entitled to direct the deposit or investment of) such
amounts in another type of investments or accounts. In the event a Master
Servicer is not entitled to direct the investment of such funds, (1) such Master
Servicer shall direct the depository institution or trust company in which such
Escrow Accounts are maintained to invest the funds held therein in accordance
with the Mortgagor's written investment instructions, if the terms of the
related Mortgage Loan or applicable law require such Master Servicer to invest
such funds in accordance with the Mortgagor's directions; and (2) in the absence
of appropriate written instructions from the Mortgagor, the Master Servicers
shall have no obligation to, but may be entitled to, direct the investment of
such funds; provided, however, that in either event (i) such funds shall be
either (y) immediately available or (z) available in accordance with a schedule
which will permit the Master Servicers to meet the payment obligations for which
the applicable Escrow Account was established, and (ii) the Master Servicers
shall have no liability for any loss in investments of such funds that are
invested pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicers and the Special
Servicers to the Trustee and to each other under this Agreement is intended by
the parties to be that of an independent contractor and not of a joint venturer,
partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of the
related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
applicable Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by such Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The applicable Master Servicer
shall apply the funds deposited in such accounts in accordance with terms of the
related Mortgage Loan documents, any Lock-Box Agreement and in accordance with
the Servicing Standard.
(h) The applicable Master Servicer or any Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The applicable Master Servicer shall not permit defeasance (or
partial defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on
or before the second anniversary of the Closing Date unless such defeasance will
not result in an Adverse REMIC Event and such Master Servicer has received an
opinion of counsel to such effect and all items in the following sentence have
been satisfied. Subsequent to the second anniversary of the Closing Date, the
applicable Master Servicer, in connection with the defeasance of a Mortgage Loan
shall require (to the extent it is not inconsistent with the Servicing Standard)
that: (i) the defeasance collateral consists of "government securities" as
defined in the 1940 Act, subject to Rating Agency approval, (ii) such Master
Servicer has received evidence satisfactory to it, that the defeasance will not
result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor
designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own
the Defeasance Collateral (subject to customary qualifications) or (B) such
Master Servicer has established a Single-Purpose Entity to hold all Defeasance
Collateral relating to the Defeasance Loans (in its corporate capacity and not
as agent of or on behalf of the Trust or the Trustee), (iv) such Master Servicer
has requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of an ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v) (A) such Master Servicer shall receive a Rating Agency
Confirmation if the Mortgage Loan (together with any other Mortgage Loan with
which it is cross-collateralized) has a Principal Balance greater than the
lesser of $20,000,000 and 5% of the Aggregate Certificate Balance (or such
higher threshold as shall be published by S&P), unless such Rating Agency has
waived in writing such Rating Agency Confirmation requirement or (B) if the
Mortgage Loan is less than or equal to both of the amounts set forth in clause
(A), either a Notice and Certification in the form attached hereto as Exhibit Z
(or such less restrictive form as shall be adopted by S&P) or a Rating Agency
Confirmation is received from S&P and (vi) a Rating Agency Confirmation is
received if the Mortgage Loan is one of the ten largest Mortgage Loans, by
Principal Balance. Any customary and reasonable out-of-pocket expense incurred
by the applicable Master Servicer pursuant to this Section 8.3(h) shall be paid
by the Mortgagor of the Defeasance Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document, if so allowed by the terms of such
documents.
The parties hereto acknowledge that, if a Seller shall have breached
the representation set forth under the heading "Releases of Mortgaged Property"
in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligations
of a Mortgagor to pay the costs of a tax opinion associated with the full or
partial release or substitution of collateral for a Mortgage Loan because the
related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, to the extent an amount is due and not paid by the
Mortgagor, then the sole obligation of the related Seller shall be to pay for
such tax opinion. In addition, the parties hereto acknowledge that, if a Seller
shall have breached the representation set forth under the heading "Defeasance
and Assumption Costs" in Exhibit 2 to the Mortgage Loan Purchase Agreements,
regarding the obligation of a Mortgagor to pay the reasonable costs and expenses
associated with a defeasance or assumption of the related Mortgage Loan, because
the related Mortgage Loan documents do not require the related Mortgagor to pay
costs related thereto, including, but not limited to, amounts owed to one or
both Rating Agencies, then the sole obligation of the related Seller shall be to
pay an amount equal to such insufficiency or expense to the extent the related
Mortgagor is not required to pay such amount. Promptly upon receipt of notice of
such insufficiency or unpaid expenses or costs, the applicable Master Servicer
shall request the related Seller to make such payment by deposit to the
applicable Certificate Account. The related Seller shall have no obligation to
pay for any of the foregoing costs if the applicable Mortgagor has an obligation
to pay for such costs.
In the case of a Specially Serviced Mortgage Loan, the applicable
Master Servicer shall process any defeasance of such Specially Serviced Mortgage
Loan in accordance with the original terms of the respective Mortgage Loan
documents following a request by the applicable Special Servicer that such
Master Servicer do so, which request shall be accompanied by a waiver of any
condition of defeasance that an "event of default" under such Specially Serviced
Mortgage Loan not have occurred or be continuing, and such Master Servicer shall
be entitled to any fees paid relating to such defeasance. If such "event of
default" is on account of an uncured payment default, the applicable Special
Servicer will process the defeasance of such Specially Serviced Mortgage Loan,
and such Special Servicer shall be entitled to any fees paid relating to such
defeasance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
originated or acquired by MSMC and subject to defeasance, MSMC has retained the
right to designate and establish the successor borrower and to purchase or cause
the purchase on behalf of the related borrower of the related defeasance
collateral ("MSMC Defeasance Rights and Obligations"). In the event the General
Master Servicer receives notice of a defeasance request with respect to a
Mortgage Loan originated or acquired by MSMC and subject to defeasance, the
General Master Servicer shall provide upon receipt of such notice, written
notice of such defeasance request to MSMC or its assignee. Until such time as
MSMC provides written notice to the contrary, notice of a defeasance of a
Mortgage Loan with MSMC Defeasance Rights and Obligations shall be delivered to
MSMC pursuant to the notice provisions of this Agreement.
(i) The applicable Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a ground lease,
confirm whether or not on or prior to the date that is thirty (30) days after
receipt of the related Servicer Mortgage File by such Master Servicer (or
Primary Servicer, if applicable), the Seller has notified the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement, and informed such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to such Master Servicer (as
evidenced by delivery of a copy thereof to such Master Servicer). Such Master
Servicer shall promptly notify the ground lessor if the Seller has failed to do
so by the thirtieth day after the Closing Date.
(j) Pursuant to the Co-Lender Agreement with respect to the
Non-Trust-Serviced Loan Group, the owner of the Non-Trust-Serviced Pari Passu
Loan has agreed that such owner's rights in, to and under the Non-Trust-Serviced
Pari Passu Loan are subject to the servicing and all other rights of the
2007-HQ11 Master Servicer and the 2007-HQ11 Special Servicer, and the 2007-HQ11
Master Servicer and the 2007-HQ11 Special Servicer are authorized and obligated
to service and administer the Non-Trust-Serviced Pari Passu Loan pursuant to the
2007-HQ11 Pooling and Servicing Agreement. Notwithstanding anything herein to
the contrary, the parties hereto acknowledge and agree that the General Master
Servicer's obligations and responsibilities hereunder and the General Master
Servicer's authority with respect to the Non-Trust-Serviced Pari Passu Loan are
limited by and subject to the terms of the Co-Lender Agreement and the rights of
the 2007-HQ11 Master Servicer and the 2007-HQ11 Special Servicer with respect
thereto under the 2007-HQ11 Pooling and Servicing Agreement. The General Master
Servicer shall use reasonable efforts consistent with the Servicing Standard to
enforce the rights of the Trustee (as holder of the Non-Trust-Serviced Pari
Passu Loan) under the Co-Lender Agreement. The General Master Servicer shall
take such actions as it shall deem reasonably necessary to facilitate the
servicing of the Non-Trust-Serviced Pari Passu Loan by the 2007-HQ11 Master
Servicer and the 2007-HQ11 Special Servicer including, but not limited to,
delivering appropriate Requests for Release to the Trustee and Custodian (if
any) in order to deliver any portion of the related Mortgage File to the
2007-HQ11 Master Servicer or the 2007-HQ11 Special Servicer under the 2007-HQ11
Pooling and Servicing Agreement.
Section 8.4 Primary Servicing and Sub-Servicing
(a) The parties hereto (A) acknowledge that the General Master Servicer
has delegated certain of its obligations and assigned certain of its rights
under this Agreement to each of the Primary Servicers pursuant to the respective
Primary Servicing Agreements and the Natixis Sub-Servicer pursuant to the
Natixis Sub-Servicing Agreement and (B) agree: (1) in addition to those
obligations specifically delegated by the General Master Servicer to the Primary
Servicers under the applicable Primary Servicing Agreement and the Natixis
Sub-Servicer under the Natixis Sub-Servicing Agreement, each Primary Servicer
and (if so provided in the related Sub-Servicing Agreement) each Sub-Servicer
shall also perform the General Master Servicer's obligations set forth in
Section 2.1(d) of this Agreement as such Section relates to the Mortgage Loans
serviced by it; (2) in addition to those rights specifically granted by the
General Master Servicer to the Primary Servicers under the applicable Primary
Servicing Agreement or any Sub-Servicer under the applicable Sub-Servicing
Agreement, those rights set forth in Section 8.24 hereof accruing to the benefit
of the General Master Servicer shall also accrue to the benefit of the Primary
Servicers and each Sub-Servicer; (3) any indemnification or release from
liability set forth in this Agreement accruing to the benefit of the General
Master Servicer shall also, to the extent applicable, benefit the Primary
Servicers and each Sub-Servicer; and (4) for each notice, certification, report,
schedule, statement or other type of writing that a party hereto is obligated to
deliver to the General Master Servicer in respect of Mortgage Loans for which a
Primary Servicer or Sub-Servicer has been engaged, such party shall deliver to
each of the applicable Primary Servicers or the applicable Sub-Servicer a copy
of such notice, certification, report, schedule, statement or other type of
writing at the time and in the same manner that any of the foregoing is required
to be delivered to the General Master Servicer.
Notwithstanding the provisions of any Primary Servicing Agreement, the
Sub-Servicing Agreement or any other provisions of this Agreement, the Master
Servicers shall remain obligated and liable to the Trustee, the Special
Servicers and the Certificateholders for servicing and administering of the
Mortgage Loans in accordance with the provisions of this Agreement to the same
extent as if the applicable Master Servicer was alone servicing and
administering the Mortgage Loans; provided, however, the foregoing shall not in
any way limit or impair the indemnification provisions benefiting the Master
Servicers in Section 8.25; and further provided, however, for the avoidance of
doubt, such "servicing and administration" shall not be construed to include
reporting under or for purposes of compliance with Regulation AB. Each Master
Servicer or applicable Primary Servicer shall supervise, administer, monitor,
enforce and oversee the servicing of the applicable Mortgage Loans by any
Sub-Servicer appointed by it. Other than with respect to the agreements with the
Primary Servicers or the Sub-Servicers under agreements that are in effect as of
the Closing Date, the terms of any arrangement or agreement between the Master
Servicer or applicable Primary Servicer, on the one hand, and a Sub-Servicer, on
the other, shall provide that such sub-servicing agreement or arrangement may be
terminated, without cause and without the payment of any termination fees, by
the Trustee in the event such applicable Master Servicer or the applicable
Primary Servicer is terminated in accordance with this Agreement or the
applicable Primary Servicing Agreement. In addition, none of the Special
Servicers, the Trustee or the Certificateholders shall have any direct
obligation or liability (including, without limitation, indemnification
obligations) with respect to any Sub-Servicer. The applicable Master Servicer or
applicable Primary Servicer shall pay the costs of enforcement against any of
its Sub-Servicers at its own expense, but shall be reimbursed therefor only (i)
from a general recovery resulting from such enforcement only to the extent that
such recovery exceeds all amounts due in respect of the related Mortgage Loans
or (ii) from a specific recovery of costs, expenses or attorneys fees against
the party against whom such enforcement is directed. Notwithstanding the
provisions of any Primary Servicing Agreement or any sub-servicing agreement,
any of the provisions of this Agreement relating to agreements or arrangements
between a Master Servicer, a Primary Servicer or a Sub-Servicer, or reference to
actions taken through a Sub-Servicer or otherwise, the applicable Master
Servicer, or applicable Primary Servicer shall remain obligated and liable to
the Trustee, the Special Servicer and the Certificateholders for the servicing
and administering of the applicable Mortgage Loans in accordance with (and
subject to the limitations contained within) the provisions of this Agreement or
the applicable Primary Servicing Agreement without diminution of such obligation
or liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the applicable Master
Servicer or applicable Primary Servicer alone were servicing and administering
the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master Servicers
or any Primary Servicer may appoint one or more sub-servicers (each, along with
the Natixis Sub-Servicer, a "Sub-Servicer") to perform all or any portion of its
duties hereunder for the benefit of the Trustee and the Certificateholders,
provided, however, that any decision or recommendation involving the exercise of
a Primary Servicer's discretion as a "lender" under any loan document with
respect to a Mortgage Loan shall be exercised only by the Primary Servicer and
may not be delegated to a Sub-Servicer; provided, further, however, that no
Master Servicer, Special Servicer or Primary Servicer shall enter into a
sub-servicing agreement with any party that is a Prohibited Party.
The General Master Servicer shall enter into a Primary Servicing
Agreement with each Primary Servicer and the Natixis Sub-Servicing Agreement
with the Natixis Sub-Servicer Agreement and shall not terminate such agreement
except in accordance with the terms thereof. To the extent consistent with the
rights of a Primary Servicer or a Sub-Servicer under this Agreement and the
related Primary Servicing Agreement or Sub-Servicing Agreement, but not in
limitation of any other rights granted to a Primary Servicer or a Sub-Servicer
in this Agreement and/or in the Primary Servicing Agreement or a Sub-Servicing
Agreement, such Primary Servicer shall have all of the rights and obligations of
a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to the
contrary, (i) each Primary Servicer's and each Sub-Servicer's rights and
obligations under its respective Primary Servicing Agreement or Sub-Servicing
Agreement shall expressly survive a termination of the applicable Master
Servicer's servicing rights under this Agreement; provided that the applicable
Primary Servicing Agreement or 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 terminated Master Servicer) shall be deemed to automatically
assume and agree to each of the then current Primary Servicing Agreements or
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 any Primary Servicer
or any Sub-Servicer hereunder and/or under the applicable Primary Servicing
Agreement or the Sub-Servicing Agreement, without the prior written consent of
such Primary Servicer or the Sub-Servicer (which consent shall not be
unreasonably withheld).
If a task, right or obligation of the General Master Servicer is
delegated to a Primary Servicer under a Primary Servicing Agreement, and such
task, right or obligation involves or requires the consent of the General
Special Servicer, then such Special Servicer shall accept the performance of
such task, right or obligation by such Primary Servicer in accordance with the
terms of this Agreement (including without limitation any time periods for
consent or deemed consent to be observed by such Special Servicer) as if the
General Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicers, in such capacity, are
neither a party to any Primary Servicing Agreement or Sub-Servicing Agreement,
nor are they bound by any provision of any Primary Servicing Agreement or the
Sub-Servicing Agreement in its capacity as Special Servicer.
Notwithstanding anything herein to the contrary, any sub-servicing
agreement with a Sub-Servicer (including the Primary Servicing Agreements and
the Sub-Servicing Agreements) shall provide that (i) the failure of the related
Sub-Servicer to comply with any of the requirements of Article XIII of this
Agreement and (ii) for so long as the General Master Servicer is required to
provide Exchange Act reporting items under the terms of this Agreement, the
failure of the related Sub-Servicer to comply with any requirements to deliver
any items required by Items 1122 and 1123 of Regulation AB (while such reporting
is required under Regulation AB) under any other pooling and servicing agreement
relating to any transaction similar to the Subject Securitization Transaction
shall constitute an event of default by such Sub-Servicer upon the occurrence of
which either the applicable Master Servicer or Special Servicer or the Depositor
shall immediately terminate the related Sub-Servicer under the related
sub-servicing agreement and that such termination shall be deemed for cause.
Section 8.5 Servicers May Own Certificates
Any Master Servicer and any Primary Servicer and any agent of the
Master Servicers or Primary Servicers in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights it would
have if it were not such Master Servicer, such Primary Servicer or such agent.
Any such interest of any Master Servicer or any Primary Servicer or such agent
in the Certificates shall not be taken into account when evaluating whether
actions of such Master Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by such
Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes
Subject to the limitations set forth below, each Master Servicer shall
use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgaged Property (other than any REO
Property) to the extent required (or, in the case of the Mortgage Loans other
than the NCB, FSB Loan, otherwise permitted) by the related Mortgage (A) a
Standard Hazard Insurance Policy which does not provide for reduction due to
depreciation in an amount that is at least equal to the lesser of (i) the full
replacement cost of improvements securing such Mortgage Loan or (ii) the
outstanding Principal Balance of such Mortgage Loan but, in any event, unless
otherwise specified in the applicable Mortgage or Mortgage Note, in an amount
sufficient to avoid the application of any co insurance clause, (B) any
terrorism insurance coverage for a Mortgage Loan, which the related Mortgagor is
required to maintain under the related Mortgage, to the extent that such
insurance is available at a commercially reasonable rate and (C) any other
insurance coverage for a Mortgage Loan which the related Mortgagor is required
to maintain under the related Mortgage; provided the applicable Master Servicer
shall not be required to maintain earthquake insurance on any Mortgaged Property
required by the related Mortgage unless such insurance was required at
origination and is available at a commercially reasonable rate; provided,
however, that the applicable Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property so long
as such insurance is available at a commercially reasonable rate; provided,
further, that a determination by a Master Servicer that terrorism insurance is
not available at a commercially reasonable rate shall be subject to the approval
of the Operating Adviser as set forth below. If the related Mortgagor does not
maintain the insurance set forth in clauses (A), (B) and (C) above, then the
applicable Master Servicer shall cause to be maintained such insurance with a
Qualified Insurer and the payment of the cost of such insurance shall be a
Servicing Advance; provided, that a determination by a Master Servicer that
terrorism insurance should not be obtained on a force-placed basis shall be
subject to the approval of the Operating Adviser as set forth below.
Concurrently with its making such determination, the Master Servicer shall
forward to the Operating Adviser and the applicable Special Servicer all
information used to make such determination. Upon a Master Servicer's
determination that terrorism insurance is not available at a commercially
reasonable rate or that terrorism insurance should not be obtained on a
force-placed basis, such Master Servicer shall notify the Operating Adviser. The
failure of the Operating Adviser to provide notice of such disapproval in such
time period shall be deemed approval. If the Operating Adviser provides such
notice of disapproval within such time period, the Master Servicer shall obtain
such insurance coverage and the cost of such insurance coverage shall be
considered a Servicing Advance.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If, on the
date of origination, the improvements on the Mortgaged Property are located in a
designated special flood hazard area by the Federal Emergency Management Agency
in the Federal Register, as amended from time to time (to the extent permitted
under the related Mortgage Loan or as required by law), the applicable Master
Servicer (with respect to any Mortgaged Property that is not an REO Property)
shall cause flood insurance to be maintained. Such flood insurance shall be in
an amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan or (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program, if the
area in which the improvements on the Mortgaged Property are located is
participating in such program. Any amounts collected by the applicable Master
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Mortgagor in accordance with the terms of
the applicable Mortgage Loan) shall be deposited in the applicable Certificate
Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by a Master
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Trustee for their benefit, be added to the Principal
Balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan permit such cost to be added to the outstanding Principal Balance thereof.
Such costs shall be paid as a Servicing Advance by such Master Servicer, subject
to Section 4.4 hereof.
Notwithstanding the above, a Master Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard to
enforce such insurance requirements. Furthermore, a Master Servicer shall not be
required in any event to maintain or obtain insurance coverage to the extent the
Trustee as mortgagee does not have an insurable interest or beyond what is
reasonably available at a commercially reasonable rate and consistent with the
Servicing Standard. Each Master Servicer shall notify the Trustee in the event
it makes such determination. Notwithstanding the foregoing, such determination
shall be subject to the approval of the Operating Adviser with respect to
terrorism insurance, as set forth in the first paragraph of this Section 8.6
and. In addition, each Master Servicer shall be entitled to rely at its own
expense on insurance consultants in connection with any such determination. In
no event shall the Master Servicer be required to obtain any insurance coverage
that would require a Servicing Advance that constitutes a Nonrecoverable
Advance.
Each Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if such Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans,
it being understood and agreed that such policy may contain a deductible clause
on terms substantially equivalent to those commercially available and maintained
by comparable servicers consistent with the Servicing Standard, and provided
that such policy is issued by a Qualified Insurer or (ii) if such Master
Servicer, provided that its or its parent's long-term rating is not less than
"A" by S&P and Fitch, self-insures for its obligations as set forth in the first
paragraph of this Section 8.6. In the event that a Master Servicer shall cause
any Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan is then covered thereby), if not borne
by the related Mortgagor, shall be paid by such Master Servicer as a Servicing
Advance. If such policy contains a deductible clause, the applicable Master
Servicer shall, if there shall not have been maintained on the related Mortgaged
Property a policy complying with this Section 8.6 and there shall have been a
loss that would have been covered by such policy, deposit in the applicable
Certificate Account the amount not otherwise payable under such master force
placed or blanket insurance policy because of such deductible clause to the
extent that such deductible exceeds (i) the deductible under the related
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, the deductible amount with respect to insurance policies
generally available on properties similar to the related Mortgaged Property
which is consistent with the Servicing Standard, and deliver to the Trustee an
Officer's Certificate describing the calculation of such amount. In connection
with its activities as administrator and servicer of the Mortgage Loans, the
applicable Master Servicer agrees to present, on its behalf and on behalf of the
Trustee, claims under any such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the applicable Master Servicer
shall maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the applicable Master
Servicer (other than with respect to REO Mortgage Loans) shall, except in the
case of Mortgage Loans under which Escrow Amounts are not held by the applicable
Master Servicer (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills, taxes and other
assessments with respect to such Mortgaged Properties prior to the applicable
penalty or termination date, in each case employing for such purpose Escrow
Amounts as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable penalty or
termination date, the applicable Master Servicer in accordance with the
Servicing Standard shall use its reasonable efforts to pay as a Servicing
Advance the amount necessary to effect the payment of any such item prior to
such penalty or termination date (or, with respect to real estate taxes, prior
to the earlier of the imposition of late tax payment penalty charges or the
notice of intent to create a tax lien on the Mortgaged Property), subject to
Section 4.4 hereof. No costs incurred by the Master Servicers or the Trustee, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums and ground rents shall, for
the purpose of calculating distributions to Certificateholders, be added to the
Principal Balance of the Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans permit such costs to be added to the outstanding principal
balances of such Mortgage Loans.
Section 8.7 [Reserved]
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files
Upon the payment in full of any Mortgage Loan, the complete defeasance
of a Mortgage Loan, satisfaction or discharge in full of any Specially Serviced
Mortgage Loan or the receipt by a Master Servicer of a notification that payment
in full (or such payment, if any, in connection with the satisfaction and
discharge in full of any Specially Serviced Mortgage Loan) will be escrowed in a
manner customary for such purposes, and upon notification by the applicable
Master Servicer in the form of a certification (which certification 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 have been or will be so deposited) of a Servicing
Officer and a request for release of the Trustee Mortgage File in the form of
Exhibit C hereto the Trustee shall promptly release the related Trustee Mortgage
File to the applicable Master Servicer and the Trustee shall execute and deliver
to such Master Servicer the deed of reconveyance or release, satisfaction or
assignment of mortgage or such instrument releasing the lien of the Mortgage, as
directed by such Master Servicer together with the Mortgage Note. The provisions
of the immediately preceding sentence shall not, in any manner, limit or impair
the right of the Master Servicers to execute and deliver, on behalf of the
Trustee, the Certificateholders or any of them, any and all instruments of
satisfaction, cancellation or assignment without recourse, representation or
warranty, or of partial or full release or discharge and all other comparable
instruments, with respect to the Mortgage Loans, and with respect to the
Mortgaged Properties held for the benefit of the Certificateholders. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Distribution Account but shall be paid
by the applicable Master Servicer except to the extent that such expenses are
paid by the related Mortgagor in a manner consistent with the terms of the
related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors and Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Trustee Mortgage File, the Trustee shall, upon request
of the applicable Master Servicer and the delivery to the Trustee of a Request
for Release signed by a Servicing Officer, in the form of Exhibit C hereto,
release the Trustee Mortgage File to such Master Servicer or the Special
Servicer, as the case may be.
Section 8.9 Documents, Records and Funds in Possession of the Master
Servicers to Be Held for the Trustee for the Benefit of the Certificateholders
Notwithstanding any other provisions of this Agreement, each Master
Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of such
Master Servicer from time to time and shall account fully to the Trustee for any
funds received or otherwise collected thereby, including Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Servicer Mortgage Files
and funds collected or held by, or under the control of, each Master Servicer in
respect of such Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds or Insurance Proceeds, including
any funds on deposit in the applicable Certificate Accounts, shall be held by
the applicable Master Servicer for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property of
the Trustee, subject to the applicable provisions of this Agreement. Each Master
Servicer agrees that it shall not create, incur or subject any Servicer Mortgage
Files or Trustee Mortgage File or any funds that are deposited in the
Certificate Accounts or the applicable Escrow Accounts, or any funds that
otherwise are or may become due or payable to the Trustee, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance, or
assert by legal action or otherwise any claim or right of setoff against any
Servicer Mortgage Files or Trustee Mortgage File or any funds collected on, or
in connection with, a Mortgage Loan, except, however, that the Master Servicers
shall be entitled to receive from any such funds any amounts that are properly
due and payable to the Master Servicers under this Agreement.
Section 8.10 Servicing Compensation
(a) As compensation for its activities hereunder, each Master Servicer
shall be entitled to the Master Servicing Fee and the General Master Servicer
shall be entitled to the Primary Servicing Fee (except with respect to the NCB,
FSB Loans), which shall be payable by the Trust from amounts held in the
applicable Certificate Accounts or otherwise collected from the Mortgage Loans
and REO Loans as provided in Section 5.2. The General Master Servicer shall be
required to pay to the Primary Servicers the related Primary Servicing Fees
(except with respect to the NCB, FSB Loans), which shall be payable by the Trust
from amounts as provided in Section 5.1(c), unless retained by the Primary
Servicers from amounts transferred to the General Master Servicer in accordance
with the terms of the Primary Servicing Agreements. The Master Servicers shall
be required to pay to the holders of the rights to the Excess Servicing Fees
(including, if applicable, the applicable Master Servicer), the Excess Servicing
Fees, which shall be payable by the Trust as provided in Section 5.1(c), unless
otherwise retained by the holders of such rights. Notwithstanding anything
herein to the contrary, if any of the holders of the right to receive Excess
Servicing Fees resigns or is no longer a Master Servicer or Primary Servicer (to
the extent that such Person was ever a Master Servicer or a Primary Servicer),
as applicable, for any reason, it will continue to have the right to receive its
portion of the Excess Servicing Fee, and any of the holders of the right to
receive Excess Servicing Fees shall have the right to assign its portion of the
Excess Servicing Fee, whether or not it is then acting as a Master Servicer or
Primary Servicer hereunder. The General Master Servicer shall also be entitled
to the Primary Servicing Fee (except with respect to the NCB, FSB Loans), which
shall be payable by the Trust from amounts held in the applicable Certificate
Account (or a sub-account thereof) or otherwise collected from the Mortgage
Loans as provided in Section 5.2, provided that the Primary Servicing Fee
payable to the General Master Servicer shall only be collected from the Mortgage
Loans set forth on Schedule III and Schedule VI. There shall be no Primary
Servicing Fee payable with respect to the NCB, FSB Loans. For the avoidance of
doubt, a sub-servicing fee set forth in the Mortgage Loan Schedule as a fee in
addition to the related Master Servicing Fee will be paid to the related Master
Servicer as part of the Master Servicing Fee in the event that the related
Sub-Servicing Agreement is terminated.
(b) Additional servicing compensation in the form of assumption
application fees, assumption fees, extension fees, servicing fees, default
interest payable at a rate above the Mortgage Rate (net of any amount used to
pay Advance Interest, Additional Trust Fund Expenses and Special Servicing Fees
relating to the subject Mortgage Loan as provided in Section 4.5), Modification
Fees, forbearance fees, Late Fees (net of any amount used to pay Advance
Interest), other usual and customary charges and fees actually received from
Mortgagors and any other fees listed in any of the Primary Servicing Agreements,
all such fees subject to allocation pursuant to such Primary Servicing
Agreements, shall be retained by the applicable Master Servicer, provided that
the applicable Master Servicer shall be entitled to receive such compensation as
set forth in Section 5.2(a)(i). If the applicable Master Servicer collects any
amount payable to the applicable Special Servicer hereunder in connection with
an REO Mortgage Loan or Specially Serviced Mortgage Loan, the applicable Master
Servicer shall promptly remit such amount to the applicable Special Servicer as
provided in Section 5.2. The applicable Master Servicer shall be required to pay
(in the manner otherwise provided herein) all applicable expenses incurred by it
in connection with its servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing
Fee payable to each Master Servicer for each monthly period relating to each
Determination Date shall be reduced by an amount equal to the Compensating
Interest (if any) relating to Mortgage Loans serviced by such Master Servicer
for such Determination Date.
(d) Each Master Servicer, as applicable, shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to its respective Mortgage
Loans (including any Specially Serviced Loans) for each Distribution Date over
the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
applicable Certificate Account and the Distribution Account (but only to the
extent of the net investment earnings, if any, with respect to each such
account), and, (iii) to the extent not required to be paid to any Mortgagor
under applicable law, any interest or other income earned on deposits in its
respective Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements
(a) For each Distribution Date, (i) each Master Servicer shall deliver
to the Trustee on the related Report Date, the Loan Periodic Update File for the
related Mortgage Loans with respect to such Distribution Date, and (ii) each
Master Servicer shall notify the Trustee as soon as reasonably possible, but no
later than noon, New York City time on the Master Servicer Remittance Date, of
the amount of any Principal Prepayments and Balloon Payments that are required
to be remitted by such Master Servicer pursuant to Section 5.2(b). The Special
Servicer is required to provide, in the form required under Section 9.32, all
information relating to Specially Serviced Mortgage Loans in order for the
applicable Master Servicer to satisfy its duties in this Section 8.11 not later
than one Business Day prior to the date such Master Servicer is required to
distribute any report. The applicable Master Servicer shall have no obligation
to provide such information or reports set forth in clauses (ii) and (iii) above
to the extent that it has not received such information or reports from the
Special Servicer; provided, however, that such Master Servicer shall not be
relieved of its obligation to provide other information or reports as set forth
in this Section 8.11(a). Each Master Servicer shall be entitled in good faith to
rely on and shall have no liability for information provided by third parties,
including the Special Servicers.
(b) Each Master Servicer shall notify the Trustee on or before the
Closing Date of the initial location of the applicable Certificate Accounts and,
promptly following any change in location of any Certificate Account, the new
location thereof.
(c) Each Master Servicer shall promptly inform the applicable Special
Servicer of the name, account number, location and other necessary information
concerning the applicable Certificate Accounts in order to permit such Special
Servicer to make deposits therein.
(d) [Reserved]
(e) Each Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee pursuant to subsection (a) or subsection
(b) of this Section 8.11 to the Depositor, the applicable Special Servicer, the
Operating Adviser and each Rating Agency, in each case upon request by such
Person and only to the extent such reports and information are not otherwise
required to be delivered to such Person under any provision of this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicers shall not have any obligation to deliver any statement,
notice or report that is then made available on such Master Servicer's website
or the Trustee's Website, provided that it has notified all parties entitled to
delivery of such reports, by electronic mail or other notice provided in this
Agreement, to the effect that such statements, notices or reports shall
thereafter be made available on such website from time to time.
(g) Each Master Servicer shall deliver or cause to be delivered to the
Trustee the following CMSA Reports with respect to the Mortgage Loans serviced
by such Master Servicer (and, if applicable, the related REO Properties) (and,
if applicable, the related REO Properties and, to the extent received from the
2007-HQ11 Master Servicer, the Non-Trust-Serviced Pari Passu Loan) providing the
required information as of the related Determination Date upon the following
schedule: (i) a CMSA Comparative Financial Status Report not later than each
Report Date, commencing in May 2007; (ii) a CMSA Operating Statement Analysis
Report, the CMSA Financial File and the CMSA NOI Adjustment Worksheet in
accordance with Section 8.14 of this Agreement; (iii) a CMSA Servicer Watch List
in accordance with and subject to the terms of Section 8.11(h) on each Report
Date, commencing in May 2007; (iv) a CMSA Loan Setup File (with respect to the
initial Distribution Date only) not later than the Report Date in April 2007;
(v) a CMSA Loan Periodic Update File not later than each Report Date commencing
in April 2007 (an April 2007 report will be issued by the Master Servicer in the
format and with the content as reasonably agreed by the Master Servicer and the
Trustee); (vi) a CMSA Property File on each Report Date, commencing in May 2007;
(vii) a CMSA Delinquent Loan Status Report on each Report Date, commencing in
May 2007; (viii) a CMSA Historical Loan Modification and Corrected Mortgage Loan
Report not later than each Report Date, commencing in May 2007; (ix) a CMSA
Historical Liquidation Report not later than each Report Date, commencing in May
2007 and (x) a CMSA REO Status Report on each Report Date, commencing in May
2007. In the case of the CMSA Property File, the CMSA Comparative Financial
Status Reports, the quarterly CMSA Operating Statement Analysis Report and
quarterly CMSA Financial File, the applicable Master Servicer will only be
required to deliver such reports at the level of frequency at which the related
Mortgagor is required to deliver the applicable financial information to the
lender (which generally is annually). The information that pertains to Specially
Serviced Mortgage Loans and REO Properties reflected in such reports shall be
based solely upon the reports delivered by the applicable Special Servicer to
the applicable Master Servicer in writing and on a computer readable medium
reasonably acceptable to the Master Servicers and such Special Servicer on the
date and in the form required under Section 9.32. The information that pertains
to the Non-Trust-Serviced Pari Passu Loan reflected in such reports shall be
based solely upon the reports delivered by the applicable Other Master Servicer.
The applicable Master Servicers' responsibilities under this Section 8.11(g)
with respect to REO Mortgage Loans and Specially Serviced Mortgage Loans shall
be subject to the satisfaction of the applicable Special Servicer's obligations
under Section 9.32. Solely with respect to the Non-Trust-Serviced Pari Passu
Loan, the General Master Servicer's responsibilities under this Section 8.11(g)
shall be subject to the performance of the 2007-HQ11 Master Servicer and the
2007-HQ11 Special Servicer of their respective reporting obligations to the
General Master Servicer under the 2007-HQ11 Pooling and Servicing Agreement.
(h) If a Master Servicer, in accordance with the Servicing Standard,
seeks to effect a drawing on any letter of credit or debt service reserve
account under which the Trust has rights as the holder of any Mortgage Loan for
purposes other than payment or reimbursement of amounts contemplated in and by a
reserve or escrow agreement, such Master Servicer shall deliver notice thereof
to the Special Servicer, the Operating Adviser and the Trustee, which notice
shall set forth (i) the unpaid Principal Balance of such Mortgage Loan
immediately before and immediately after the drawing, and (ii) a brief
description of the circumstances that in such Master Servicer's good faith and
reasonable judgment and in compliance with the Servicing Standard will entitle
such Master Servicer to make such drawing. The applicable Special Servicer shall
have five Business Days to consent to such drawing, which consent may be
communicated by facsimile transmission or e-mail and shall not be unreasonably
withheld. If the Special Servicer does not respond within such five Business Day
period, consent shall be deemed to have been given.
Section 8.12 [Reserved]
Section 8.13 [Reserved]
Section 8.14 Operating Statement Analysis Reports Regarding the
Mortgaged Properties
Within 105 calendar days (or 90 days as to any Special Servicer), or
120 days with respect to any Co-op Mortgage Loans, after the end of each of the
first three calendar quarters (in each year) for the trailing 12 months,
quarterly or year-to-date information received, commencing for the quarter
ending on June 30, 2007, each Master Servicer shall deliver to the Trustee and
the Operating Adviser an Operating Statement Analysis Report and a Financial
File for each Mortgaged Property in electronic format prepared using the
normalized quarterly, year-to-date or trailing 12 month operating statements
and, in the case of Mortgage Loans other than Co-op Mortgage Loans, rent rolls
received from the related Mortgagor, if any. With respect to Specially Serviced
Mortgage Loans, the applicable Master Servicer shall include information only to
the extent provided by the applicable Special Servicer, which an Operating
Statement Analysis Report and a Financial File shall be prepared by the
applicable Special Servicer and delivered to the applicable Master Servicer
within 90 days after the end of each of the first three quarters of each year
for the trailing twelve months, quarterly or year-to-date information received
and other information utilized by the applicable Special Servicer to prepare
such report or files. With respect to any Mortgage Loan for which a Primary
Servicer is appointed as a Special Servicer with respect to such Mortgage Loan
pursuant to Section 9.39, the reports prepared by any such Special Servicer
shall only include the CMSA reports and related data required by the related
Primary Servicing Agreement, and such other reports as are mutually agreed to by
the related Primary Servicer and the General Master Servicer. Not later than the
Report Date occurring in June of each year, beginning in 2008 for year-end 2007,
the applicable Master Servicer (in the case of Mortgage Loans that are not
Specially Serviced Mortgage Loans and as provided by the applicable Special
Servicer to the applicable Master Servicer for Specially Serviced Mortgage
Loans) shall deliver to the Trustee and the Operating Adviser an Operating
Statement Analysis Report, a Financial File and an NOI Adjustment Worksheet for
each Mortgage Loan in electronic format, based on the most recently available
year-end financial statements and most recently available rent rolls, in each
case of Mortgage Loans other than Co-op Mortgage Loans, of each applicable
Mortgagor (to the extent provided to the applicable Master Servicer or
applicable Special Servicer by or on behalf of each Mortgagor). In the case of
Specially Serviced Mortgaged Loans, as provided to the applicable Special
Servicer by the Mortgagor, the applicable Special Servicer shall forward such
information to the applicable Master Servicer on or before April 15 (or July 15
if the related Mortgage Loan documents permit the related Mortgagor to provide
the related year-end information after March) of each such year as provided for
in Section 9.32(e) herein, containing such information and analyses for each
Mortgage Loan provided for in the respective forms of Operating Statement
Analysis Report, Financial File and NOI Adjustment Worksheet. Such information
provided by the applicable Master Servicer shall include what would customarily
be included in accordance with the Servicing Standard including, without
limitation, Debt Service Coverage Ratios and income, subject in the case of the
Non-Trust-Serviced Pari Passu Loan, to the receipt of such report from the
2007-HQ11 Master Servicer or the 2007-HQ11 Special Servicer. The General Master
Servicer shall make reasonable efforts, consistent with the Servicing Standard,
to obtain such reports from the 2007-HQ11 Master Servicer or the 2007-HQ11
Special Servicer. As and to the extent reasonably requested by a Special
Servicer, the applicable Master Servicer shall make inquiry of any Mortgagor
with respect to such information or as regards the performance of the related
Mortgaged Property in general. The Trustee shall provide or make available
electronically at no cost to the Certificateholders or Certificate Owners, the
Rating Agencies, the Operating Adviser, the Depositor, the Placement Agent and
the Underwriters, the Operating Statement Analysis Reports, the Financial Files
and the NOI Adjustment Worksheets described above pursuant to Section 5.4(a).
The General Master Servicer shall make the CMSA Operating Statement Analysis
Report, the operating statements, rent rolls (except in the case of Co-op
Mortgage Loans), property inspections and NOI Adjustment Worksheet for each
Mortgage Loan available on its website (the "General Master Servicer's Website")
by the Business Day following the Distribution Date in April 2007. The
aggregated CMSA Reports for the NCB, FSB Loans shall be available on the NCB
Master Servicer's Website (which shall initially be located at xxx.xxx.xxxx (the
"NCB Master Servicer's Website") by the Business Day following the Distribution
Date in April 2007. Each Master Servicer shall, upon request by any of such
parties, deliver copies of such documents to such parties if such documents are
not available on such Master Servicer's website at such time, except that the
Master Servicer shall in all cases electronically deliver such documents and
information for each Mortgage Loan to the initial Operating Advisor as provided
herein. Pursuant to the Mortgage Loan Purchase Agreements, the Sellers shall
populate all fields or any information for their related Mortgage Loans
reasonably requested by the applicable Master Servicer to complete the Property
File.
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer
(a) Subject to paragraphs (b), (c) and (d) below, unless prohibited by
applicable law or the loan documents, the Trustee shall make available at its
Corporate Trust Office, during normal business hours, upon reasonable advance
written notice for review by any Certificateholder, any Certificate Owner, any
Seller, any Primary Servicer, the Placement Agent, any Underwriter, each Rating
Agency, the Trustee or the Depositor, originals or copies of, among other
things, the following items: (i) this Agreement and any amendments thereto, (ii)
all final and released Operating Statement Analysis Reports and the Loan
Periodic Update Files, (iii) all Officer's Certificates (including Officer's
Certificates evidencing any determination of Nonrecoverable Advances) delivered
to the Trustee since the Closing Date, (iv) all accountants' reports delivered
to the Trustee since the Closing Date, (v) the most recent property Inspection
Reports in the possession of the Trustee in respect of each Mortgaged Property,
(vi) the most recent Mortgaged Property annual operating statement and, in the
case of Mortgage Loans other than Co-op Mortgage Loans, rent roll, if any,
collected by or on behalf of the Master Servicers or the Special Servicers,
(vii) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Master Servicers and/or the Special Servicers,
and (viii) any and all Officers' Certificates (and attachments thereto)
delivered to the Trustee to support a Master Servicer's determination that any
Advance was not or, if made, would not be, recoverable. The Trustee will be
permitted to require payment of a sum to be paid by the requesting party (other
than the Rating Agencies, the Trustee, any Placement Agent or any Underwriter)
sufficient to cover the reasonable costs and expenses of making such information
available.
(b) Subject to the restrictions described below, each Master Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the applicable
Special Servicer, the Primary Servicers, the Sellers, any Placement Agent, the
Underwriters, the Operating Adviser, any Certificateholder or any Certificate
Owner, upon reasonable notice and during normal business hours, reasonable
access to all information referred to in Section 8.15(a) and any additional
relevant, non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement (which access may occur by
means of the availability of information on the applicable Master Servicers' or
the Trustee's Website or the electronic delivery of such information to the
requesting Person), in each case to the extent in its respective possession, and
access to Servicing Officers of the applicable Master Servicers responsible for
its obligations hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be, which may include a certification. Copies (or computer diskettes or
other digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be made
available by the applicable Master Servicers upon request; provided, however,
that the applicable Master Servicers shall be permitted to require payment by
the requesting party (other than the Depositor, the Trustee, the applicable
Special Servicer, the Operating Adviser, any Placement Agent, any Underwriter,
or any Rating Agency) of a sum sufficient to cover the reasonable expenses
actually incurred by such Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require either of the Master
Servicers to confirm, represent or warrant the accuracy of (or to be liable or
responsible for) any other Person's information or report. Notwithstanding the
above, neither of the Master Servicers shall have any liability to the
Depositor, the Trustee, the applicable Special Servicer, any Certificateholder,
any Certificate Owner, the Placement Agent, any Underwriter, any Rating Agency
or any other Person to whom it delivers information pursuant to this Section
8.15 or any other provision of this Agreement for federal, state or other
applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against a Master Servicer (or any partners, representatives,
Affiliates, members, managers, directors, officers, employees, agents thereof),
the Trust (from amounts held in any account) shall hold harmless and indemnify
such Master Servicer from any loss or expense (including attorney fees) relating
to or arising from such claims.
(d) Each Master Servicer shall produce the reports required of it under
this Agreement; provided, however, that the Master Servicers shall not be
required to produce any ad hoc non-standard written reports not otherwise
required under this Agreement with respect to such Mortgage Loans. In the event
a Master Servicer elects to provide such non-standard reports, it may require
the Person requesting such report (other than a Rating Agency) to pay a
reasonable fee to cover the costs of the preparation thereof. Notwithstanding
anything to the contrary herein, as a condition to a Master Servicer making any
report or information available upon request to any Person other than the
parties hereto, such Master Servicer may require that the recipient of such
information acknowledge that such Master Servicer may contemporaneously provide
such information to the Depositor, the Trustee, the applicable Special Servicer,
the Primary Servicer, the Sellers, the Placement Agent, any Underwriter, any
Rating Agency and/or the Certificateholders or Certificate Owners. Any
transmittal of information by a Master Servicer to any Person other than the
Trustee, the other Master Servicer, the Special Servicers, the Rating Agencies,
the Operating Adviser or the Depositor may be accompanied by a letter from such
Master Servicer containing a disclaimer as to the confidentiality of the
information requested.
(e) Each Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that such Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) Each Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, each of the Master Servicers and each of the Special
Servicers shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Operating Adviser during regular business
hours at such time and for such duration as the applicable Master Servicer or
Special Servicer, and the Operating Adviser shall reasonably agree, regarding
the performance and servicing of the Mortgage Loans and REO Properties for which
such Master Servicer or such Special Servicer, as the case may be, is
responsible. As a condition to such disclosure, the Operating Adviser shall
execute a confidentiality agreement in form reasonably acceptable to each Master
Servicer, each Special Servicer and the Operating Adviser.
Section 8.16 Rule 144A Information
For as long as any of the Certificates are "restricted securities"
within the meaning of Rule 144A under the Securities Act, each Master Servicer
agrees to provide to the Trustee for delivery to any Holder thereof, any
Certificate Owner therein and to any prospective purchaser of the Certificates
or beneficial interest therein reasonably designated by the Trustee upon the
request of such Certificateholder, such Certificate Owner or the Trustee,
subject to this Section 8.16 and the provisions of Section 8.15, any information
prepared by such Master Servicer that is required to be provided to such holder
or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act, including, without limitation, copies of the reports
and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the applicable
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the applicable Master Servicer chooses to deliver the
information directly, the Depositor, the Placement Agent, the Underwriters or
the Trustee shall be responsible for the physical delivery of the information
requested pursuant to this Section 8.16. As a condition to a Master Servicer
making any report or information available upon request to any Person other than
the parties hereto, such Master Servicer may require that the recipient of such
information acknowledge that such Master Servicer may contemporaneously provide
such information to the Depositor, the Trustee, the Placement Agent, the
Underwriters, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicers will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Placement Agent or the Underwriters) sufficient to cover the reasonable costs
and expenses of making such information available.
Section 8.17 Inspections
Each Master Servicer shall, at its own expense, inspect or cause to be
inspected each Mortgaged Property for which it is acting as Master Servicer,
other than Mortgaged Properties related to Specially Serviced Mortgage Loans,
every calendar year beginning in 2008, or every second calendar year beginning
in 2008 if the Principal Balance of the related Mortgage Loan is under
$2,000,000; provided that each Master Servicer shall, at the expense of the
Trust, inspect or cause to be inspected each Mortgaged Property related to a
Mortgage Loan for which it is acting as Master Servicer (other than a Specially
Serviced Mortgage Loan, or if there has not been an inspection within the past
six months) that has a Debt Service Coverage Ratio that falls below 1.0x or,
with respect to Co-op Mortgage Loans, 0.90x. The foregoing sentence shall not
alter the terms of the applicable Special Servicer's obligation to inspect
Mortgaged Properties as set forth in Section 9.4(b) hereto. The applicable
Master Servicer shall cause to be prepared an Inspection Report relating to each
inspection.
The applicable Inspection Reports shall be available for review by the
Trustee, the applicable Special Servicer, the Rating Agencies, the Placement
Agent, the Underwriters, the Depositor, the Operating Adviser, any Certificate
Owner, any Seller and any Primary Servicer via password protocol and execution
of an agreement relating thereto on the General Master Servicer's Website. With
respect to the NCB, FSB Loans, the applicable Inspection Reports shall be
available for review by the Trustee, the applicable Special Servicer, the Rating
Agencies, the Placement Agent, the Underwriters, the Depositor, the Operating
Adviser, any Certificate Owner, any Seller and any Primary Servicer via password
protocol and execution of an agreement relating thereto on the NCB Master
Servicer's Website (which shall be initially located at xxx.xxx.xxxx) by the
Business Day following the Distribution Date in April 2007. The NCB Master
Servicer shall, upon request by any of such parties, deliver copies of such
documents to any of the foregoing parties if such documents are not available on
the NCB Master Servicer's Website at such time. The applicable Special Servicer
shall have the right, but no duty, to inspect or cause to be inspected (at its
own expense) every calendar year any Mortgaged Property related to a Mortgage
Loan that is not a Specially Serviced Mortgage Loan, provided that such Special
Servicer notifies such Master Servicer prior to such inspection.
Section 8.18 [Reserved]
Section 8.19 Specially Serviced Mortgage Loans
(a) The applicable Master Servicer shall send a written notice to the
applicable Special Servicer, the Operating Adviser, Rating Agencies and the
Trustee, within two Business Days after becoming aware of a Servicing Transfer
Event with respect to a Mortgage Loan, which notice shall identify the related
Mortgage Loan and set forth in reasonable detail the nature and relevant facts
of such Servicing Transfer Event and whether such Mortgage Loan is covered by an
Environmental Insurance Policy (and for purposes of stating whether such
Mortgage Loan is covered by an Environmental Insurance Policy applicable the
Master Servicer may rely on the Mortgage Loan Schedule) and, except for the
Rating Agencies and the Trustee, shall be accompanied by a copy of the Servicer
Mortgage File. The applicable Special Servicer shall not be liable for its
failure to deliver the notice set forth in Section 9.36(a) if such failure is
caused by its failure to receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the applicable Special Servicer, the applicable Master Servicer
shall notify the related Mortgagor of such transfer in accordance with the
Servicing Standard (the form and substance of such notice shall be reasonably
satisfactory to the applicable Special Servicer).
(c) Any calculations or reports prepared by the applicable Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to such Master Servicer in writing by the
applicable Special Servicer as provided hereby. The applicable Master Servicer
shall have no duty to investigate or confirm the accuracy of any information
provided to it by the applicable Special Servicer and shall have no liability
for the inaccuracy of any of its reports due to the inaccuracy of the
information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the applicable Master
Servicer shall provide to the applicable Special Servicer, in order for such
Special Servicer to comply with its obligations under this Agreement, such
information (and in the form and medium) as such Special Servicer may reasonably
request in writing from time to time, provided that (i) the applicable Master
Servicer shall not be required to produce any ad hoc reports or incur any
unusual expense or effort in connection therewith and (ii) if such Master
Servicer elects to provide such ad hoc reports, it may require the applicable
Special Servicer to pay a reasonable fee to cover the costs of the preparation
thereof.
Section 8.20 Representations, Warranties and Covenants of the Master
Servicers
(a) The General Master Servicer hereby represents and warrants to and
covenants with the Trustee, as of the date hereof:
(i) the General Master Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of California,
and shall be and thereafter remain, 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, except where the failure to so
qualify or comply would not adversely affect the General Master Servicer's
ability to perform its obligations hereunder in accordance with the terms of
this Agreement;
(ii) the General Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions
and obligations contemplated by this Agreement. The General Master Servicer
has duly and validly authorized the execution, delivery and performance of
this Agreement and this Agreement has been duly executed and delivered by
the General Master Servicer; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the NCB
Master Servicer, the Trustee and the Special Servicers, evidences the valid
and binding obligation of the General Master Servicer enforceable against
the General Master Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, receivership and other similar laws affecting
creditors' rights generally as from time to time in effect, and to 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, the consummation of
the transactions contemplated hereby, and the fulfillment of or compliance
with the terms and conditions of this Agreement will not (1) result in a
breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a
default under, the terms of any other material agreement or instrument to
which it is a party or by which it may be bound, or any law, governmental
rule, regulation, or judgment, decree or order applicable to it of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects its ability to
perform its obligations under this Agreement;
(iv) no litigation is pending or, to the General Master Servicer's
knowledge, threatened, against it, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it of
its obligations hereunder; and
(vi) the performance of the services by the General Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
General Master Servicer and the General Master Servicer possesses all
licenses, permits and other authorizations necessary to perform its duties
hereunder.
(b) The NCB Master Servicer hereby represents and warrants to and
covenants with the Trustee, as of the date hereof:
(i) the NCB Master Servicer is a federal savings bank duly organized,
validly existing and in good standing under the laws of the United States,
and the NCB Master Servicer is in compliance with the laws of each State in
which any related Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the NCB Master Servicer's
ability to perform its obligations hereunder in accordance with the terms of
this Agreement;
(ii) the NCB Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate the NCB Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of the NCB Master
Servicer, is likely to affect materially and adversely either the ability of
the NCB Master Servicer to perform its obligations under this Agreement or
the financial condition of the NCB Master Servicer;
(iii) the NCB Master Servicer has the full power and authority to enter
into and consummate all transactions involving the NCB Master Servicer
contemplated by this Agreement, has duly authorized the execution, delivery
and performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) this Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the NCB Master Servicer, enforceable against the NCB 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 NCB Master Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with this Agreement will
not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the NCB Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the NCB Master Servicer to
perform its obligations under this Agreement or the financial condition of
the NCB Master Servicer;
(vi) no consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the NCB Master Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of the NCB Master Servicer to perform its obligations under this
Agreement;
(vii) no litigation is pending or, to the best of the NCB Master
Servicer's knowledge, threatened against the NCB Master Servicer the outcome
of which, in the NCB Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the NCB Master Servicer from
entering into this Agreement or materially and adversely affect the ability
of the NCB Master Servicer to perform its obligations under this Agreement;
and
(viii) the NCB Master Servicer has errors and omissions insurance as
required by Section 8.2.
(c) It is understood that the representations and warranties set forth
in this Section 8.20 shall survive the execution and delivery of this Agreement.
(d) Any cause of action against a Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the applicable Master Servicer by any of
the Trustee or the applicable Master Servicer. The applicable Master Servicer
shall give prompt notice to the Trustee, the Depositor, the Primary Servicers
and the applicable Special Servicer of the occurrence, or the failure to occur,
of any event that, with notice or the passage of time or both, would cause any
representation or warranty in this Section to be untrue or inaccurate in any
respect.
Section 8.21 Merger or Consolidation
Any Person into which a Master Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion, other change in form or
consolidation to which such Master Servicer shall be a party, or any Person
succeeding to the business of such Master Servicer, shall be the successor of
such Master Servicer hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided, however,
that each Rating Agency provides a Rating Agency Confirmation. If such a
transaction occurs and the conditions to the provisions in the foregoing
sentence are not met, the Trustee may terminate, or if such a transaction occurs
and the conditions set forth in the following paragraph are not met the Trustee
shall terminate, the successor's, survivor's or resulting entity's servicing of
the Mortgage Loans pursuant hereto, such termination to be effected in the
manner set forth in Sections 8.28 and 8.29.
Notwithstanding the foregoing, as long as the Trust is subject to the
reporting requirements of the Exchange Act, neither Master Servicer may remain a
Master Servicer under this Agreement after (x) being merged or consolidated with
or into any Person that is a Prohibited Party, or (y) transferring all or
substantially all of its assets to any Person if such Person is a Prohibited
Party, unless (i) such Master Servicer is the surviving entity of such merger,
consolidation or transfer or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld (and
if, within 45 days following the date of delivery of a notice by the applicable
Master Servicer to the Depositor of any merger or similar transaction described
in the prior paragraph, the Depositor shall have failed to notify the applicable
Master Servicer of the Depositor's determination to grant or withhold such
consent, such failure shall be deemed to constitute a grant of such consent).
Section 8.22 Resignation of the Master Servicer
(a) Except as otherwise provided in Section 8.22(b) hereof, a Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that such Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of such Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Trustee, shall have
assumed such Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation shall have been obtained. Notice of
such resignation shall be given promptly by such Master Servicer to the Trustee.
(b) A Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee, provided that (i) a successor
servicer (x) is available, (y) is willing to assume the obligations,
responsibilities, and covenants to be performed hereunder by such Master
Servicer on substantially the same terms and conditions, and for not more than
equivalent compensation to that herein provided and (z) in the case of a
successor servicer to the General Master Servicer, assumes all obligations of
the resigning General Master Servicer under the Primary Servicing Agreements;
(ii) such Master Servicer bears all costs associated with its resignation and
the transfer of servicing; and (iii) Rating Agency Confirmation is obtained with
respect to such servicing transfer, as evidenced by a letter delivered to the
Trustee by each such Rating Agency.
Section 8.23 Assignment or Delegation of Duties by the Master Servicer
A Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of such Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by such Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) such Master Servicer gives the Depositor, the applicable Special
Servicer, the Primary Servicers and the Trustee notice of such assignment and
delegation; (ii) such purchaser or transferee accepting such assignment and
delegation executes and delivers to the Depositor and the Trustee an agreement
accepting such assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of such
Master Servicer, with like effect as if originally named as a party to this
Agreement and the Primary Servicing Agreements; (iii) the purchaser or
transferee has assets in excess of $15,000,000; (iv) such assignment and
delegation is the subject of a Rating Agency Confirmation from Fitch and S&P;
and (v) the Depositor consents to such assignment and delegation, such consent
not be unreasonably withheld. In the case of any such assignment and delegation
in accordance with the requirements of subclause (B) of this Section, such
Master Servicer shall be released from its obligations under this Agreement,
except that such Master Servicer shall remain liable for all liabilities and
obligations incurred by it as such Master Servicer hereunder prior to the
satisfaction of the conditions to such assignment set forth in the preceding
sentence. Notwithstanding the above, such Master Servicer may appoint the
Primary Servicers and Sub-Servicers in accordance with Section 8.4 hereof.
Section 8.24 Limitation on Liability of the Master Servicers and Others
(a) Neither of the Master Servicers nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Master Servicers shall be under any liability to the holders of
the Certificates, the Depositor, the Trustee, the Paying Agent, the Placement
Agent, the Underwriters, a holder of the Non-Trust Serviced Companion Loan or
the Special Servicers for any action taken or for refraining from the taking of
any action in good faith, or using reasonable business judgment, consistent with
the Servicing Standard; provided that this provision shall not protect any
Master Servicer or any such Person against any breach of a representation or
warranty contained herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in its performance of
duties under the Agreement or by reason of negligent disregard of obligations
and duties hereunder. The Master Servicers and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of the Master
Servicers may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person (including, without limitation,
the applicable Special Servicer) respecting any matters arising hereunder. The
Master Servicers shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement; provided that each Master
Servicer may in its sole discretion undertake any such action which it may
reasonably deem necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Mortgage Loans (subject to the
applicable Special Servicer's servicing of Specially Serviced Mortgage Loans as
contemplated herein). In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and any Master Servicer shall be
entitled to be reimbursed therefor as Servicing Advances as provided by Section
5.2, subject to the provisions of Section 4.4 hereof.
(b) In addition, the Master Servicers shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Master Servicers and conforming to the requirements
of this Agreement. Subject to the Servicing Standard, each Master Servicer shall
have the right to rely on information provided to it by the applicable Special
Servicer and Mortgagors, and will have no duty to investigate or verify the
accuracy thereof. Neither the Master Servicers, nor any partner, representative,
Affiliate, member, manager, director, officer, employee or agent, shall be
personally liable for any error of judgment made in good faith by any officer,
unless it shall be proved that such Master Servicer or such officer was
negligent in ascertaining the pertinent facts. Neither the Master Servicers nor
any partner, representative, Affiliate, member, manager, director, officer,
employee or agent, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicers shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicers, the Paying Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Master Servicers from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such Master Servicer is unable to recover such amounts from the
Person in breach.
(d) Except as otherwise specifically provided herein:
(i) a Master 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)
reasonably believed or in good faith believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) a Master Servicer may consult with counsel, and any written advice
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;
(iii) a Master Servicer shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) a Master Servicer, in preparing any reports hereunder, may rely,
and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in electronic or paper
format) reasonably believed by it to be genuine and provided by any
Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicers and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of such Master Servicer
shall be indemnified by the Trustee, the Paying Agent and the applicable Special
Servicer, as the case may be, and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that such Master Servicer
may sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of the Trustee's, the Paying Agent's or the
applicable Special Servicer's duties hereunder, as the case may be, or by reason
of negligent disregard of the Trustee's, the applicable Special Servicer's or
the Paying Agent's obligations and duties hereunder, as the case may be,
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations). A
Master Servicer shall immediately notify the Trustee, the Paying Agent and the
applicable Special Servicer, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans for which it is acting as Master Servicer
entitling such Master Servicer to indemnification hereunder, whereupon the
Trustee, the Paying Agent or the applicable Special Servicer, in each case, to
the extent the claim is related to its respective willful misfeasance, bad
faith, negligence or negligent disregard, shall assume the defense of any such
claim (with counsel reasonably satisfactory to such Master 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, the Paying
Agent and the applicable Special Servicer shall not affect any rights that such
Master Servicer may have to indemnification under this Agreement or otherwise,
unless the Trustee's, the Paying Agent's or the applicable Special Servicer's
defense of such claim is materially prejudiced thereby. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of such
Master Servicer hereunder. Any payment hereunder made by the Trustee, the Paying
Agent or the Special Servicer pursuant to this paragraph to such Master Servicer
shall be paid from the Trustee's, the Paying Agent's or the applicable Special
Servicer's own funds, without reimbursement from the Trust therefor except to
the extent achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent or the applicable Special Servicer shall be reimbursed by the party so
paid, if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee, the Paying Agent or the applicable Special Servicer, as
the case may be, was not culpable of willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or of negligent
disregard of its respective duties hereunder or the indemnified party is found
to have acted with willful misfeasance, bad faith or negligence.
Section 8.25 Indemnification; Third-Party Claims
(a) Each Master Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each such Master
Servicer shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to this Agreement, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of such Master Servicer's willful misfeasance, bad faith or negligence in
the performance of duties hereunder.
Subject to the provisions of Section 9.40, the indemnification
described in the preceding paragraph (including in the case of such claims or
losses that relate primarily to the administration of the Trust, to any REMIC
Pool or to any determination respecting the amount, payment or avoidance of any
tax under the REMIC provisions of the Code or the actual payment of any REMIC
tax or expense) shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole.
A Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to such Master Servicer) and out of the Trust
pay all expenses in connection therewith, including counsel fees, and out of the
Trust promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim and satisfy any settlement
or other disposition in respect of such claim. The indemnification provided
herein shall survive the termination of this Agreement or of the Master
Servicers in such capacity. The Trustee, the Paying Agent or the Master
Servicers shall promptly make from the applicable Certificate Account any
payments certified by the applicable Master Servicer to the Trustee and the
Paying Agent as required to be made to the applicable Master Servicer pursuant
to this Section 8.25.
(b) Each Master Servicer agrees to indemnify the Trustee, the
applicable Special Servicer, the Trust, the Depositor, the Paying Agent, and any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person thereof, and hold them harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that the Trustee, the applicable Special Servicer, the Depositor, the Paying
Agent and the Trust may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of any of such Master
Servicer's duties hereunder or by reason of negligent disregard of such Master
Servicer's obligations and duties hereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation such
Master Servicer is replaced, the parties hereto agree that the amount of such
claims, losses, penalties, fines, legal fees and related costs, judgments, and
other costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor servicer. The Trustee, the applicable
Special Servicer, the Paying Agent or the Depositor, as applicable, shall
immediately notify the applicable Master Servicer if a claim is made by any
Person with respect to this Agreement or the Mortgage Loans entitling the
Trustee, the Depositor, the applicable Special Servicer, the Paying Agent or the
Trust to indemnification under this Section 8.25(b), whereupon the applicable
Master Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the applicable Special Servicer, the
Paying Agent or the Depositor, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the applicable Master Servicer shall not affect
any rights the Trustee, the applicable Special Servicer, the Depositor, the
Paying Agent or the Trust may have to indemnification under this Agreement or
otherwise, unless the applicable Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
applicable Master Servicer, the applicable Special Servicer, the Paying Agent
and the Trustee. Any expenses incurred or indemnification payments made by the
applicable Master Servicer shall be reimbursed by the party so paid, if a court
of competent jurisdiction makes a final, non-appealable judgment that the
conduct of the applicable Master Servicer was not culpable of willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or of negligent disregard of its respective duties hereunder or the
indemnified party is found to have acted with willful misfeasance, bad faith or
negligence.
(c) The Master Servicers shall not have any liability to the Depositor,
the Trustee, the Paying Agent, the Special Servicers, the 2007-HQ11 Master
Servicer, the 2007-HQ11 Special Servicer, any Certificateholder, any Certificate
Owner, any Primary Servicer, the Placement Agent, any Underwriter, any Rating
Agency or any other Person to whom it delivers information pursuant to the
provisions of this Agreement for federal, state or other applicable securities
law violations relating to the disclosure of such information. In the event any
Person brings any claims relating to or arising from the foregoing against a
Master Servicer (or any partners, representatives, Affiliates, members,
managers, directors, officers, employees, agents thereof), the Trust (from
amounts held in any account) shall hold harmless and indemnify such Master
Servicer from any loss or expense (including attorney fees) relating to or
arising from such claims.
(d) The 2007-HQ11 Master Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of the
2007-HQ11 Master Servicer shall be indemnified by the Trust and held harmless
against (i) the Trust's pro rata share of any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
relating to the 2007-HQ11 Pooling and Servicing Agreement and this Agreement,
and relating to the Non-Trust-Serviced Pari Passu Loan (but excluding any such
losses allocable to the Non-Trust Serviced Companion Loan), reasonably requiring
the use of counsel or the incurring of expenses other than any losses incurred
by reason of the 2007-HQ11 Master Servicer's willful misfeasance, bad faith or
negligence in the performance of its duties under the 2007-HQ11 Pooling and
Servicing Agreement and (ii) any claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses relating to the Non-Trust-Serviced Pari Passu Loan, but only to the
extent that such losses arise out of the actions of the Master Servicers, the
Special Servicers or the Trustee, and only to the extent that such actions are
in violation of such party's duties under the provisions of this Agreement and
to the extent that such actions are the result of such party's negligence, bad
faith or willful misconduct.
Section 8.26 [Reserved]
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions
The Master Servicers shall act in accordance with this Agreement and
the REMIC Provisions and related provisions of the Code in order to create or
maintain the status of the REMIC Pools created hereby as REMICs and the Class EI
Grantor Trust created hereby as a grantor trust under the Code. The Master
Servicers shall take no action or (A) cause any REMIC Pool to take any action
that could (i) endanger the status of any REMIC Pool as a REMIC under the Code
or (ii) result in the imposition of a tax upon any REMIC Pool (including, but
not limited to, the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code or on prohibited contributions pursuant to Section
860G(d) of the Code) or (B) cause the Class EI Grantor Trust to take any action
that could (i) endanger its status as a grantor trust or (ii) result in the
imposition of any tax upon the Class EI Grantor Trust, unless the Trustee shall
have received a Nondisqualification Opinion (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Master
Servicers shall comply with the provisions of Article XII hereof.
Section 8.28 Termination
(a) The obligations and responsibilities of either Master Servicer
created hereby (other than the obligation of the Master Servicers to make
payments to the Trustee as set forth in Section 8.29 and the obligations of the
Master Servicers to the Trustee, the Paying Agent, the applicable Special
Servicer and the Trust as set forth in Section 8.25) shall terminate (i) on the
date which is the later of (A) the final payment or other liquidation of the
last Mortgage Loan remaining outstanding (and final distribution to the
Certificateholders) or (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) if an Event of Default with
respect to such Master Servicer described in clauses 8.28(b)(iii), (iv), (viii)
or (ix) (but, with respect to clause (ix), only if directed by the
Certificateholders or the Operating Adviser as set forth in the last sentence of
this Section 8.28(a)) has occurred, 60 days following the date on which the
Trustee or Depositor gives written notice to such Master Servicer that such
Master Servicer is terminated or (iii) if an Event of Default with respect to
such Master Servicer described in clauses 8.28(b)(i), (ii), (v), (vi) or (vii)
has occurred, immediately upon the date on which the Trustee or the Depositor
gives written notice to such Master Servicer that such Master Servicer is
terminated. After any Event of Default, the Trustee (i) may elect (or, with
respect to clause 8.28(b)(x), either the Trustee or the Depositor may elect) to
terminate such Master Servicer by providing such notice, and (ii) shall provide
such notice if holders of Certificates representing more than 25% of the
Aggregate Certificate Balance of all Certificates so direct the Trustee. After
an Event of Default described in Section 8.28(b)(ix) below, the Trustee shall,
at the written direction of the Operating Adviser or the holders of Certificates
representing more than 51% of the Aggregate Certificate Balance of all
Certificates, terminate such Master Servicer.
(b) "Event of Default," wherever used herein, means, with respect to
any Master Servicer, any one of the following events:
(i) any failure by such Master Servicer, at the times required
hereunder, to remit to the Trustee or otherwise make any payment required to
be remitted by such Master Servicer under the terms of this Agreement,
including any required P&I Advances, which continues unremedied until 11:00
a.m. on the Distribution Date; or
(ii) any failure by such Master Servicer to (i) make a required deposit
to the applicable Certificate Account which continues unremedied for one
Business Day following the date on which such deposit was first required to
be made, or (ii) timely make any Servicing Advance required to be made by it
hereunder, which Servicing Advance remains unmade for a period of one
Business Day following the date on which notice shall have been given to
such Master Servicer by the Trustee as provided in Section 4.3(b); or
(iii) any failure on the part of such Master Servicer duly to observe
or perform in any material respect any other of the duties, covenants or
agreements on the part of such Master Servicer contained in this Agreement
(other than with respect to the duties, covenants or agreements contained in
Article XIII, for so long as the Trust is subject to the reporting
requirements of the Exchange Act) which continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to such Master Servicer by
the Depositor or the Trustee; provided, however, that if such Master
Servicer certifies to the Trustee and the Depositor that such Master
Servicer is in good faith attempting to remedy such failure, such cure
period will be extended to the extent necessary to permit the Master
Servicer to cure such failure; provided, further, that such cure period may
not exceed 90 days; or
(iv) any breach of the representations and warranties contained in
Section 8.20 hereof that materially and adversely affects the interest of
any holder of any Class of Certificates and that continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to such Master Servicer by
the Depositor or the Trustee, provided, however, that if such Master
Servicer certifies to the Trustee and the Depositor that such Master
Servicer is in good faith attempting to remedy such breach, such cure period
will be extended to the extent necessary to permit such Master Servicer to
cure such breach; provided, further, that such cure period may not exceed 90
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, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against such Master
Servicer and such decree or order shall have remained in force undischarged,
undismissed or unstayed for a period of 60 days; or
(vi) such Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to such Master Servicer or
of or relating to all or substantially all of its property; or
(vii) such Master 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) such Master Servicer ceases to have a master servicer rating of
at least "CMS3" from Fitch, or the Trustee receives written notice from
Fitch to the effect that the continuation of the Master Servicer in such
capacity would result in the downgrade, qualification or withdrawal of any
rating then assigned by Fitch to any Class of Certificates and citing
servicing concerns with such Master Servicer as the sole or a material
factor in such rating action; provided that such Master Servicer shall have
60 days after removal due to such default within which it may sell its
servicing rights to a party acceptable under this Agreement;
(ix) such Master Servicer is no longer listed on S&P's Select Servicer
List as a U.S. Commercial Mortgage Master Servicer (or, with respect to NCB,
FSB, as a U.S. Commercial Mortgage Servicer), and that Master Servicer is
not reinstated to such status within 60 days; or
(x) subject to Section 13.8, such Master Servicer or any Additional
Servicer or Sub-Servicer appointed by such Master Servicer (other than a
Seller Sub-Servicer), shall fail to deliver any Exchange Act reporting items
required to be delivered by such servicer under Article XIII of this
Agreement at the times required under such Article.
If any Master Servicer is terminated based upon an Event of Default set
forth in clause (viii) or (ix) above, then such Master Servicer shall have the
right to enter into a sub-servicing agreement or primary servicing agreement
with the applicable successor master servicer with respect to all applicable
Mortgage Loans that are not then subject to a Sub-Servicing Agreement or Primary
Servicing Agreement, so long as such terminated Master Servicer is on the
approved select list of commercial mortgage loan servicers maintained by S&P and
has a commercial loan primary servicer rating of at least "CPS3" (or the
equivalent) from Fitch (or obtains a Rating Agency Confirmation from each Rating
Agency as to which such terminated Master Servicer does not satisfy the
applicable rating level described above), and the Operating Adviser has
consented to such Primary Servicing or Sub-Servicing arrangement.
Section 8.29 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i) of Section
8.28(a), specifying the Master Servicer Remittance Date upon which the final
transfer by a Master Servicer to the Trustee shall be made, shall be given
promptly in writing by such Master Servicer to the Trustee no later than the
later of (i) five Business Days after the final payment or other liquidation of
the last Mortgage Loan or (ii) the sixth day of the month of such final
distribution. Upon any such termination, the duties of such Master Servicer
(other than the obligation of such Master Servicer to pay to the Trustee the
amounts remaining in the applicable Certificate Account as set forth below and
the obligations of such Master Servicer to the Trustee and the Trust as provided
herein) shall terminate and such Master Servicer shall transfer to the Trustee
the amounts remaining in the applicable Certificate Account (and any
sub-account) after making the withdrawals permitted to be made pursuant to
Section 5.2 and shall thereafter terminate the applicable Certificate Account
and any other account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given to a
Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the date on
which a written notice of termination is given to a Master Servicer pursuant to
clause (iii) of Section 8.28(a) all authority, power and rights of such Master
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall terminate (except for any rights relating to unpaid servicing
compensation or unreimbursed Advances or, if the terminated Master Servicer is
NCB, FSB, the Excess Servicing Fee with respect to its Mortgages Loans and all
indemnities and exculpations set forth herein); provided that in no event shall
the termination of such Master Servicer be effective until a successor servicer
shall have succeeded such Master Servicer as successor servicer, subject to
approval by the Rating Agencies, notified such Master Servicer of such
designation and such successor servicer shall have assumed such Master
Servicer's obligations and responsibilities hereunder and under the Primary
Servicing Agreements, as set forth in an agreement substantially in the form
hereof, with respect to the Mortgage Loans. Except as provided in the next
sentence, the Trustee may not succeed a Master Servicer as servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of such Master Servicer pursuant to Section 8.22(b) hereof.
Notwithstanding the foregoing sentence, in the event that a Master Servicer is
terminated as a result of an event described in Section 8.28(b)(v), 8.28(b)(vi)
or 8.28(b)(vii), the Trustee shall act as successor servicer immediately upon
delivery of a notice of termination to such Master Servicer and shall use
commercially reasonable efforts within 90 days of assuming the duties of such
Master Servicer, either to satisfy the conditions of Section 8.22(b) hereof or
to transfer the duties of such Master Servicer to a successor servicer who has
satisfied such conditions. The Trustee is hereby authorized and empowered to
execute and deliver, on behalf of such Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents or otherwise. The Master
Servicers agree to cooperate with the Trustee in effecting the termination of a
Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
servicing function and providing the Trustee all documents and records in
electronic or other form reasonably requested by it to enable the successor
servicer designated by the Trustee to assume such Master Servicer's functions
hereunder and to effect the transfer to such successor for administration by it
of all amounts which shall at the time be or should have been deposited by such
Master Servicer in the Certificate Account and any other account or fund
maintained or thereafter received with respect to the Mortgage Loans.
(c) If a Master Servicer receives a written notice of termination
pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of
Default set forth in clause (viii), (ix) or (x) of Section 8.28(b) or an Event
of Default caused by a default of a Primary Servicer under its Primary Servicing
Agreement, and if such Master Servicer provides the Trustee with the appropriate
"request for proposal" materials within five Business Days after receipt of such
written notice of termination, then the Trustee shall promptly thereafter (using
such "request for proposal" materials provided by such Master Servicer) solicit
good faith bids for the rights to service the Mortgage Loans under this
Agreement from at least three but no more than five Qualified Bidders or, if
three Qualified Bidders cannot be located, then from as many Persons as the
Trustee can determine are Qualified Bidders. At the Trustee's request, such
Master Servicer shall supply the Trustee with the names of Persons from whom to
solicit such bids. In no event shall the Trustee be responsible if less than
three Qualified Bidders submit bids for the right to service the Mortgage Loans
under this Agreement.
(d) Each bid proposal shall require any Qualified Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the Primary
Servicing Agreements, not later than 45 days after termination of the applicable
Master Servicer hereunder. The Trustee shall select the Qualified Bidder with
the highest cash bid (or such other Qualified Bidder as the applicable Master
Servicer may direct) (the "Successful Bidder") to act as successor Master
Servicer hereunder. The Trustee shall direct the Successful Bidder to enter into
this Agreement as successor Master Servicer pursuant to the terms hereof, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as a
successor Master Servicer within 45 days after the termination of a Master
Servicer hereunder or no Successful Bidder was identified within such 45-day
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b). During such 45-day period and until the
acceptance of appointment by a successor servicer, the Master Servicer shall
continue to service the Mortgage Loans in accordance with this Agreement.
(g) Notwithstanding anything to the contrary in this Section 8.29, the
successor master servicer must assume all of the obligations of the terminated
Master Servicer under the Primary Servicing Agreements as a condition precedent
to its becoming Master Servicer hereunder.
(h) Any costs and expenses associated with the transfer of the master
servicing function (other than with respect to a termination without cause)
under this Agreement shall be borne by the predecessor Master Servicer and shall
be paid within 30 days of request therefor, otherwise, if the applicable Master
Servicer is terminated without cause, such costs and expenses shall be payable
from the Trust.
Section 8.30 Notification to Certificateholders
(a) Upon any resignation of a Master Servicer pursuant to Section 8.22
or termination of a Master Servicer pursuant to Section 8.28 or appointment of a
successor to the applicable Master Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default with
respect to a Master Servicer of which a Responsible Officer of the Trustee has
actual knowledge, the Trustee shall transmit by mail to all Holders of
Certificates and each Rating Agency notice of such Event of Default, unless such
Event of Default shall have been cured or waived.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY THE SPECIAL SERVICERS
Section 9.1 Duties of the Special Servicers
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Certificateholders and the Trustee, the applicable Special
Servicer shall service the Specially Serviced Mortgage Loans and manage the
related REO Properties in accordance with the provisions of this Agreement and
the Servicing Standard (subject to the servicing of the Non-Trust-Serviced Pari
Passu Loan by the 2007-HQ11 Master Servicer and the 2007-HQ11 Special Servicer
in accordance with the 2007-HQ11 Pooling and Servicing Agreement). Certain of
the provisions of this Article IX make explicit reference to their
non-applicability to the Non-Trust-Serviced Pari Passu Loan; notwithstanding
such explicit references, references to "Mortgage Loans," "Specially Serviced
Mortgage Loans," "REO Mortgage Loan," "REO Property," "Rehabilitated Mortgage
Loan" and "Mortgaged Property" contained in this Article IX, unless otherwise
specified, shall be construed to exclude the Non-Trust-Serviced Pari Passu Loan
and any related real property (but any other terms that are defined in Article I
and used in this Article IX shall be construed according to such definitions
without regard to this sentence).
The General Special Servicer shall be the Special Servicer with respect
to all the Mortgage Loans and other assets of the Trust other than the Co-op
Trust Assets and the Non-Trust Serviced Loan Group and, as such, shall service
and administer such of the assets of the Trust (other than the Co-op Trust
Assets and the Non-Trust Serviced Loan Group) as constitute Specially Serviced
Mortgage Loans and REO Properties and shall render such incidental services as
are required of such Special Servicer with respect to such of the assets of the
Trust (other than the Co-op Trust Assets and the Non-Trust Serviced Loan Group)
as constitute assets that are not Specially Serviced Mortgage Loans or REO
Properties. The Co-op Special Servicer shall be the Special Servicer with
respect to the Co-op Trust Assets and, as such, shall service and administer
such of the Co-op Trust Assets as constitute Specially Serviced Mortgage Loans
or REO Properties and shall render such incidental services as are required of
such Special Servicer with respect to such of the Co-op Trust Assets as are not
Specially Serviced Mortgage Loans or REO Properties.
(b) Each Special Servicer shall cooperate with the applicable Master
Servicer and provide the applicable Master Servicer with the information
reasonably requested by such Master Servicer, in writing, to the extent required
to allow such Master Servicer to perform its servicing obligations with respect
to the Specially Serviced Mortgage Loans hereunder; provided, however, that (i)
a Special Servicer shall not be required to produce any ad hoc reports or incur
any unusual expense or effort in connection therewith and (ii) if a Special
Servicer elects to provide such ad hoc reports requested by the applicable
Master Servicer, such Special Servicer may require the applicable Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
A Special Servicer's obligations with respect to the servicing of any Specially
Serviced Mortgage Loan and any related REO Properties shall terminate when such
Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage Loan,
unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The applicable Special Servicer shall send a written notice to the
applicable Master Servicer and the Trustee within two Business Days after
becoming aware that a Mortgage Loan has become a Rehabilitated Mortgage Loan,
which notice shall identify the applicable Mortgage Loan. Upon the receipt of
such notice by the applicable Master Servicer and the Trustee, such Mortgage
Loan shall become a Rehabilitated Mortgage Loan and will be serviced by the
applicable Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to a
Mortgage Loan and upon the reasonable request of the applicable Special
Servicer, the applicable Master Servicer shall xxxx its records for such
Mortgage Loan to cause any monthly statements for amounts due on such Mortgage
Loan to be sent thereafter to the applicable Special Servicer rather than the
related Mortgagor. Upon receipt of any such monthly statement, the applicable
Special Servicer shall, within two Business Days, advise the applicable Master
Servicer of any changes to be made, and return the monthly statement to the
applicable Master Servicer. The applicable Master Servicer shall thereafter
promptly send the corrected monthly statement to the Mortgagor. If a Mortgage
Loan becomes a Rehabilitated Mortgage Loan, the applicable Master Servicer shall
send the monthly statement to the Mortgagor as it did before such Mortgage Loan
became a Specially Serviced Mortgage Loan.
(e) All amounts collected by the applicable Master Servicer with
respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that
has become an REO Mortgage Loan) shall be deposited in the applicable
Certificate Account. The applicable Master Servicer shall within two Business
Days after receipt of any such payment, notify the applicable Special Servicer
of the receipt of such payment and the amount thereof. The applicable Special
Servicer shall, within two Business Days thereafter, instruct the applicable
Master Servicer in writing how to apply such payment (with the application of
such payments to be made in accordance with the related Mortgage Loan documents
(including the Co-Lender Agreement, as applicable) or in accordance with this
Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event with respect
to any one or more Mortgage Loans that are the subject of any Environmental
Insurance Policy, (i) the applicable Special Servicer shall monitor the dates by
which any claim must be made or action must be taken under such Environmental
Insurance Policy to achieve the payment of all amounts thereunder to which the
Trust is entitled in the event the applicable Special Servicer has actual
knowledge of any event giving rise to a claim under such Environmental Insurance
Policy (an "Insured Environmental Event") and (ii) if the applicable Special
Servicer has actual knowledge of an Insured Environmental Event with respect to
such Mortgage Loan, such Special Servicer shall take reasonable actions as are
in accordance with the Servicing Standard and the terms and conditions of the
related Environmental Insurance Policy to make a claim thereunder and achieve
the payment of all amounts to which the Trust is entitled thereunder. Any legal
fees or other out-of-pocket costs incurred in accordance with the Servicing
Standard in connection with any such claim shall be paid by, and reimbursable
to, the applicable Master Servicer as a Servicing Advance. All extraordinary
expenses (but not ordinary and routine or anticipated expenses) incurred by the
applicable Special Servicer in fulfilling its obligations under this Section 9.1
shall be paid by the Trust.
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of
the Special Servicers
Each Special Servicer, at its expense, shall maintain in effect a
Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy. The
Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall
be issued by a Qualified Insurer (unless a Special Servicer self insures as
provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the applicable Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of a Special Servicer (or its
corporate parent) is not less than two rating categories (ignoring pluses or
minuses) lower than the highest rating of the Certificates, but in any event not
less than "A" as rated by S&P and Fitch, such Special Servicer may self-insure
for the Servicer Fidelity Bond and the Servicer Error and Omissions Insurance
Policy.
Section 9.3 Sub-Servicers
Each Special Servicer shall have the right to use a Sub-Servicer on the
same terms and conditions as those set forth in Section 8.4 for a Sub-Servicer
of the applicable Master Servicer. The applicable Special Servicer shall notify
the applicable Master Servicer, the Trustee and the Operating Adviser of the
appointment of any Sub-Servicer of such Special Servicer.
Section 9.4 Special Servicers' General Powers and Duties
(a) Subject to the other terms and provisions of this Agreement
(including, but not limited to, Sections 9.39), each Special Servicer is hereby
authorized and empowered when such Special Servicer believes it appropriate in
accordance with the Servicing Standard, to take any and all the actions with
respect to Specially Serviced Mortgage Loans which the applicable Master
Servicer may perform as set forth in Section 8.3(a), including (i) to execute
and deliver, on behalf of itself or the Trust, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Specially Serviced Mortgage
Loans and with respect to the related REO Properties and (ii) to effectuate
foreclosure or other conversion of the ownership of any REO Property securing a
Mortgage Loan. The Trustee shall execute on the Closing Date the Powers of
Attorney in the form of Exhibit S-2A and Exhibit S-2B hereto and shall furnish
the applicable Special Servicer from time to time, upon request, with any
additional powers of attorney of the Trust, empowering such Special Servicer to
take such actions as it determines to be reasonably necessary to comply with its
servicing, administrative and management duties hereunder, and the Trustee shall
execute and deliver or cause to be executed and delivered such other documents
as a Special Servicing Officer may request, that are necessary or appropriate to
enable such Special Servicer to service, administer and manage the Specially
Serviced Mortgage Loans and carry out its duties hereunder, in each case as such
Special Servicer determines is in accordance with the Servicing Standard and the
terms of this Agreement; provided that, prior to initiating any proceedings in
any court of law or equity (but not defending any proceedings in any court of
law or equity) or instituting any proceeding to foreclose on any Mortgaged
Property in the name of the Trust in any state, such Special Servicer shall
notify the Trustee in writing and not institute or initiate any such proceedings
for a period of five Business Days from the date of its delivery of such notice
to the Trustee, unless such Special Servicer reasonably believes that such
action should be taken in less than five Business Days to preserve the property
of the Trust for the benefit of Certificateholders, and the Trustee may within
five Business Days of its receipt of such notice advise such Special Servicer
that it has received an Opinion of Counsel (the cost of which shall be an
expense of the Trust) from an attorney duly licensed to practice law in the
state where the related Mortgaged Property or REO Property is located, that it
is likely that the laws of the state in which said action is to be taken either
prohibit such action if taken in the name of the Trust or that the Trust would
be adversely affected under the "doing business" or tax laws of such state if
such action is taken in its name; provided, further, that such Special Servicer
shall not be liable to the extent that it relies on the advice provided in such
Opinion of Counsel. Upon receipt of any such advice from the Trustee, the
applicable Special Servicer shall take such action in the name of such Person or
Persons, in trust for the Trust, as shall be consistent with the Opinion of
Counsel obtained by the Trustee. Such Person or Persons shall acknowledge in
writing that such action is being taken by the Special Servicer in the name of
the Trust. In the performance of its duties hereunder, the applicable Special
Servicer shall be an independent contractor and shall not, except in those
instances where it is, after notice to the Trustee as provided above, taking
action in the name of the Trust, be deemed to be the agent of the Trust. The
applicable Special Servicer shall indemnify the Trustee for any loss, liability
or reasonable expense (including attorneys' fees) incurred by the Trustee or any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person of it or its Affiliates in connection with
any negligent or intentional misuse of the foregoing powers of attorney
furnished to such Special Servicer by the Trustee. Such indemnification shall
survive the resignation or termination of a Special Servicer hereunder, the
resignation or termination of the Trustee and the termination of this Agreement.
The applicable Special Servicer shall not have any responsibility or liability
for any act or omission of the Trustee, the applicable Master Servicer or the
Depositor that is not attributable to the failure of such Special Servicer to
perform its obligations hereunder. The applicable Special Servicer may
conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the applicable Special Servicer
shall employ procedures consistent with the Servicing Standard. The applicable
Special Servicer shall conduct, or cause to be conducted, at the expense of the
Trust, inspections of the Mortgaged Properties relating to Specially Serviced
Mortgage Loans at such times and in such manner as shall be consistent with the
Servicing Standard; provided that such Special Servicer shall conduct, or cause
to be conducted, inspections of the Mortgaged Properties relating to Specially
Serviced Mortgage Loans at least once during each twelve-month period that ends
on March 30 of any calendar year (commencing with the twelve-month period ending
March 30, 2008); provided, further, that such Special Servicer shall, at the
expense of the Trust, inspect or cause to be inspected each Mortgaged Property
related to a Mortgage Loan that is delinquent for sixty (60) days in the payment
of any amounts due under such Mortgage Loan. The applicable Special Servicer
shall provide to the applicable Master Servicer and the Operating Adviser copies
of the Inspection Reports relating to such inspections as soon as practicable
after the completion of any inspection.
(c) Pursuant to the Co-Lender Agreement with respect to the
Non-Trust-Serviced Pari Passu Loan, the owner of the Non-Trust-Serviced Pari
Passu Loan has agreed that such owner's rights in, to and under the
Non-Trust-Serviced Pari Passu Loan are subject to the servicing and all other
rights of the 2007-HQ11 Master Servicer and the 2007-HQ11 Special Servicer and
the 2007-HQ11 Master Servicer and the 2007-HQ11 Special Servicer are authorized
and obligated to service and administer the Non-Trust-Serviced Pari Passu Loan
pursuant to the 2007-HQ11 Pooling and Servicing Agreement. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the General Special Servicer's obligations and responsibilities hereunder and
the General Special Servicer's authority with respect to the Non-Trust-Serviced
Pari Passu Loan are limited by and subject to the terms of the Co-Lender
Agreement and the rights of the 2007-HQ11 Master Servicer and the 2007-HQ11
Special Servicer with respect thereto under the 2007-HQ11 Pooling and Servicing
Agreement. The General Special Servicer shall take such actions as it shall deem
reasonably necessary to facilitate the servicing of the Non-Trust-Serviced Pari
Passu Loan by the 2007-HQ11 Master Servicer and the 2007-HQ11 Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the 2007-HQ11 Master Servicer or the 2007-HQ11 Special
Servicer under the 2007-HQ11 Pooling and Servicing Agreement.
Section 9.5 [Reserved]
Section 9.6 Release of Mortgage Files
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by a Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Specially Serviced Mortgage Loan, such Special
Servicer will within 2 Business Days notify the applicable Master Servicer. The
applicable Special Servicer shall determine, in accordance with the Servicing
Standard, whether an instrument of satisfaction shall be delivered and, if such
Special Servicer determines that such instrument should be delivered, such
Special Servicer shall deliver written approval of such delivery to the
applicable Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the applicable Special Servicer and delivery
to the Trustee or Custodian of a request for release signed by a Special
Servicing Officer substantially in the form of Exhibit C, release the related
Mortgage File to such Special Servicer. After the transfer of servicing with
respect to any Specially Serviced Mortgage Loan to the applicable Special
Servicer, in accordance with the Servicing Standard, the applicable Master
Servicer shall notify, in writing, the Mortgagor under each Specially Serviced
Mortgage Loan transferred to the applicable Special Servicer, of such transfer.
(c) [Reserved]
(d) The applicable Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the applicable Master Servicer all
documents and instruments in the possession of such Special Servicer related to
such Rehabilitated Mortgage Loan. Prior to the transfer of servicing with
respect to any Rehabilitated Mortgage Loan to the applicable Master Servicer in
accordance with the Servicing Standard, the applicable Special Servicer shall
notify, in writing, each Mortgagor under each Rehabilitated Mortgage Loan of
such transfer.
Section 9.7 Documents, Records and Funds in Possession of the Special
Servicers to Be Held for the Trustee
(a) Each Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of such Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the applicable Special Servicer in respect
of any Specially Serviced Mortgage Loan or any REO Property or which otherwise
are collected by the applicable Special Servicer as Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds in respect of any Specially Serviced
Mortgage Loan or any REO Property shall be remitted to the applicable Master
Servicer within two Business Days of receipt for deposit into the applicable
Certificate Account, except that if such amounts relate to REO Income, they
shall be deposited in the applicable REO Account. The applicable Special
Servicer shall provide access to information and documentation regarding the
Specially Serviced Mortgage Loans to the Trustee, the applicable Master
Servicer, the Operating Adviser and their respective agents and accountants at
any time upon reasonable written request and during normal business hours,
provided that such Special Servicer shall not be required to take any action or
provide any information that such Special Servicer determines will result in any
material cost or expense to which it is not entitled to reimbursement hereunder
or will result in any material liability for which it is not indemnified
hereunder; provided, further, that the Trustee shall be entitled to receive from
the applicable Special Servicer all such information as the Trustee shall
reasonably require to perform their respective duties hereunder. In fulfilling
such a request, the applicable Special Servicer shall not be responsible for
determining whether such information is sufficient for the Trustee's, the
applicable Master Servicer's or the Operating Adviser's purposes.
(b) Each Special Servicer also agrees that it shall not create, incur
or subject any Specially Serviced Mortgage Loans, or any funds that are required
to be deposited in any REO Account to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Specially Serviced
Mortgage Loan or any funds, collected on, or in connection with, a Specially
Serviced Mortgage Loan.
Section 9.8 Representations, Warranties and Covenants of the Special
Servicers
(a) LNR Partners, Inc., in its capacity as the General Special
Servicer, hereby represents and warrants to and covenants with the Trustee as of
the Closing Date:
(i) the General Special Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Florida, and the General 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 General
Special Servicer, and the performance and compliance with the terms of this
Agreement by the General Special Servicer, will not violate the General
Special Servicer's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of its
assets which default or breach in the reasonable judgment of the General
Special Servicer, is likely to affect materially and adversely either the
ability of the General Special Servicer to perform its obligations under
this Agreement or the financial condition of the General Special Servicer;
(iii) the General Special Servicer has the full corporate 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 General Special Servicer, enforceable against the General
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) the General Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of, any
law, order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory authority,
which violation, in the General Special Servicer's reasonable judgment, is
likely to affect materially and adversely either the ability of the General
Special Servicer to perform its obligations under this Agreement or the
financial condition of the General Special Servicer;
(vi) no litigation is pending or, to the best of the General Special
Servicer's knowledge, threatened against the General Special Servicer the
outcome of which, in the General Special Servicer's reasonable judgment,
could reasonably be expected to prohibit the General Special Servicer from
entering into this Agreement or that, in the General Special Servicer's
reasonable judgment, is likely to materially and adversely affect the
ability of the General Special Servicer to perform its obligations under
this Agreement;
(vii) the General Special Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 9.2 hereof; and
(viii) no consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the General Special Servicer with this Agreement, or the
consummation by the General Special Servicer of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings, or notices as have been obtained or
made and (2) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a material
adverse effect on the performance by the General Special Servicer under this
Agreement.
(b) The Co-op Special Servicer, hereby represents and warrants to and
covenants with the Trustee as of the Closing Date:
(i) The Co-op Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the United States, and the
Co-op Special Servicer is in compliance with the laws of each State in which
any related Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement.
(ii) The Co-op Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Co-op Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or any
of its assets, which default, in the good faith and reasonable judgment of
the Co-op Special Servicer, is likely to affect materially and adversely
either the ability of the Co-op Special Servicer to perform its obligations
under this Agreement or the financial condition of the Co-op Special
Servicer.
(iii) The Co-op Special Servicer has the full power and authority to
enter into and consummate all transactions involving the Co-op Special
Servicer contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by each of the other parties hereto, constitutes a valid, legal and binding
obligation of the Co-op Special Servicer, enforceable against the Co-op
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership, moratorium
and other laws affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Co-op Special Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with the terms
of this Agreement will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Co-op Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of
the Co-op Special Servicer to perform its obligations under this Agreement
or the financial condition of the Co-op Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Co-op Special Servicer of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained or where the lack of such consent, approval,
authorization or order would not have a material adverse effect on the
ability of the Co-op Special Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of the Co-op Special
Servicer's knowledge, threatened against the Co-op Special Servicer the
outcome of which, in the Co-op Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Co-op Special
Servicer from entering into this Agreement or materially and adversely
affect the ability of the Co-op Special Servicer to perform its obligations
under this Agreement.
(viii) The Co-op Special Servicer has errors and omissions insurance as
required by Section 9.2.
(ix) As of the Closing Date, the Co-op Special Servicer is not a party
to any sub-servicing agreement providing for the performance of duties of
the Co-op Special Servicer by any Sub-Servicer with respect to any Co-op
Mortgage Loans or related REO Properties.
(c) It is understood that the representations and warranties set forth
in this Section 9.8 shall survive the execution and delivery of this Agreement.
(d) Any cause of action against the applicable Special Servicer arising
out of the breach of any representations and warranties made in this Section
shall accrue upon the giving of written notice to such Special Servicer by any
of the Trustee, the applicable Master Servicer or the Trustee. A Special
Servicer shall give prompt notice to the Trustee, the Depositor, the Operating
Adviser and the applicable Master Servicer of the occurrence, or the failure to
occur, of any event that, with notice, or the passage of time or both, would
cause any representation or warranty in this Section to be untrue or inaccurate
in any respect.
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability
Insurance Policies
(a) For all REO Property, the applicable Special Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to maintain with a
Qualified Insurer a Standard Hazard Insurance Policy which does not provide for
reduction due to depreciation in an amount which is not less than the full
replacement cost of the improvements of such REO Property or in an amount not
less than the unpaid Principal Balance plus all unpaid interest and the
cumulative amount of Servicing Advances (plus Advance Interest) made with
respect to such Mortgage Loan, whichever is less, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause. If the
improvements to the Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available), the applicable
Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage equal to the lesser of the then outstanding
Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances
(plus Advance Interest) and the maximum insurance coverage required under such
current guidelines. It is understood and agreed that the applicable Special
Servicer has no obligation to obtain earthquake or other additional insurance on
REO Property, except as required by law and, nevertheless, at its sole
discretion and at the Trust's expense, it (if required at origination and is
available at commercially reasonable rates) may obtain such earthquake
insurance. The applicable Special Servicer shall use its reasonable efforts,
consistent with the Servicing Standard, to obtain a comprehensive general
liability insurance policy for all REO Properties. The applicable Special
Servicer shall, to the extent available at commercially reasonable rates (as
determined by such Special Servicer in accordance with the Servicing Standard)
and to the extent consistent with the Servicing Standard, use its reasonable
efforts to maintain a Rent Loss Policy covering revenues for a period of at
least twelve months and a comprehensive general liability policy with coverage
comparable to prudent lending requirements in an amount not less than $1,000,000
per occurrence. All applicable policies required to be maintained by the
applicable Special Servicer pursuant to this Section 9.9(a) shall name the
Trustee as loss payee. The costs of such insurance shall be paid by the
applicable Master Servicer as a Servicing Advance pursuant to Section 4.2,
subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the applicable Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than amounts
to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the applicable Special Servicer shall
not be required in any event to maintain or obtain insurance coverage beyond
what is reasonably available at commercially reasonable rates consistent with
the Servicing Standard. The applicable Special Servicer shall notify the Trustee
of any such determination.
The applicable Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
applicable Special Servicer shall have obtained and maintained a master force
placed or blanket insurance policy insuring against hazard losses on all of the
applicable REO Property serviced by it, it being understood and agreed that such
policy may contain a deductible clause on terms substantially equivalent to
those commercially available and maintained by comparable servicers consistent
with the Servicing Standard, and provided that such policy is issued by a
Qualified Insurer or (ii) if the applicable Special Servicer (or its corporate
parent) self-insures for its obligations, provided that the rating of such
Person's long-term debt is not less than "A" by S&P and Fitch. In the event that
the applicable Special Servicer shall cause any REO Property to be covered by
such a master force placed or blanket insurance policy, the incremental cost of
such insurance allocable to such REO Property (i.e., other than any minimum or
standby premium payable for such policy whether or not any REO Property is then
covered thereby), shall be paid by the applicable Special Servicer, at its
option, or by the applicable Master Servicer, as a Servicing Advance, subject to
the provisions of Section 4.4 hereof. If such policy contains a deductible
clause, the applicable Special Servicer shall, if there shall not have been
maintained on the related REO Property a policy complying with this Section 9.9
and there shall have been a loss that would have been covered by such policy,
deposit in the applicable Certificate Account the amount not otherwise payable
under such master force placed or blanket insurance policy because of such
deductible clause to the extent that such deductible exceeds (i) the deductible
under the related Mortgage Loan or (ii) if there is no deductible limitation
required under the Mortgage Loan, the deductible amount with respect to
insurance policies generally available on properties similar to the related REO
Property which is consistent with the Servicing Standard, and deliver to the
Trustee an Officer's Certificate describing the calculation of such amount. In
connection with its activities as administrator and servicer of the REO
Properties, the applicable Special Servicer agrees to present, on its behalf and
on behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
Section 9.10 Presentment of Claims and Collection of Proceeds
The applicable Special Servicer will prepare and present or cause to be
prepared and presented on behalf of the Trustee all claims under the Insurance
Policies with respect to REO Property, and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured's claim) as
shall be necessary to recover under such policies. Any proceeds disbursed to the
applicable Special Servicer in respect of such policies shall be promptly
remitted to the applicable Certificate Account, upon receipt, except for any
amounts realized that are to be applied to the repair or restoration of the
applicable REO Property in accordance with the Servicing Standard. Any
extraordinary expenses (but not ordinary and routine or anticipated expenses)
incurred by the applicable Special Servicer in fulfilling its obligations under
this Section 9.10 shall be paid by the Trust.
Section 9.11 Compensation to the Special Servicer
(a) As compensation for its activities hereunder, the Special Servicers
shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and
(iii) the Work-Out Fee. The applicable Special Servicer shall be entitled to
receive a Liquidation Fee from the proceeds received in connection with a full
or partial liquidation (net of related costs and expenses of such liquidation)
of a Specially Serviced Mortgage Loan or REO Property (whether arising pursuant
to a sale, condemnation, casualty or otherwise). With respect to each REO
Mortgage Loan that is a successor to a Mortgage Loan secured by two or more
Mortgaged Properties, the reference to "REO Property" in the preceding sentence
shall be construed on a property-by-property basis to refer separately to the
acquired real property that is a successor to each of such Mortgaged Properties,
thereby entitling the applicable Special Servicer to a Liquidation Fee from the
Liquidation Proceeds received in connection with a final disposition of, and
Condemnation Proceeds or Insurance Proceeds received in connection with, each
such acquired property as the Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds related to that property are received.
(b) The applicable Special Servicer shall be entitled to cause the
applicable Master Servicer to withdraw from the applicable Certificate Account,
the Special Servicer Compensation in respect of each Mortgage Loan, in the time
and manner set forth in Section 5.2 of this Agreement. The applicable Special
Servicer shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder and shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest payable at a rate above the Mortgage Rate (net of amounts used to pay
Advance Interest, Additional Trust Fund Expenses, Special Servicing Fees,
Liquidation Fees and Workout Fees relating to the subject Mortgage Loan as
provided in Section 4.5) or other usual and customary charges and fees actually
received from the Mortgagor in connection with any Specially Serviced Mortgage
Loan shall be retained by the applicable Special Servicer, to the extent not
required to be deposited in the applicable Certificate Account pursuant to the
terms of this Agreement (other than any such fees payable in connection with the
Non-Trust-Serviced Pari Passu Loan). The applicable Special Servicer shall also
be permitted to receive such compensation as set forth in Section 5.2(a)(ii), to
the extent provided for herein from funds paid by the applicable Mortgagor. To
the extent any component of Special Servicer Compensation is in respect of
amounts usually and customarily paid by Mortgagors, the applicable Special
Servicer shall use reasonable good faith efforts to collect such amounts from
the related Mortgagor, and to the extent so collected, in full or in part, such
Special Servicer shall not be entitled to compensation for the portion so
collected therefor hereunder out of the Trust.
Section 9.12 Realization Upon Defaulted Mortgage Loans
(a) The applicable Special Servicer, in accordance with the Servicing
Standard and subject to Sections 9.4(a), 9.36 and 9.39, shall use its reasonable
efforts to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such of the Specially Serviced
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments of
such Mortgage Loan, the sale of such Mortgage Loan in accordance with this
Agreement or the modification of such Mortgage Loan in accordance with this
Agreement. In connection with such foreclosure or other conversion of ownership,
the applicable Special Servicer shall follow the Servicing Standard.
(b) The applicable Special Servicer shall not acquire any personal
property relating to any Specially Serviced Mortgage Loan pursuant hereto 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 applicable
Special Servicer; or
(ii) the applicable Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the
Trust) to the effect that the holding of such personal property by any REMIC
Pool will not cause the imposition of a tax on such REMIC Pool under the
Code or cause such REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
applicable Special Servicer shall not, on behalf of the Trust, obtain title to a
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, and
shall not otherwise acquire possession of, or take any other action with respect
to, any Mortgaged Property, if, as a result of any such action the Trust 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 applicable comparable federal, state or local law, or a
"discharger" or "responsible party" thereunder, unless such Special Servicer has
also previously determined in accordance with the Servicing Standard, based on a
Phase I Environmental Report prepared by a Person (who may be an employee or
Affiliate of the applicable Master Servicer or such Special Servicer) who
regularly conducts environmental site assessments in accordance with the
standards of FNMA in the case of multi-family mortgage loans and customary
servicing practices in the case of commercial loans for environmental
assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental
expert 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;
(ii) taking such actions as are necessary to bring the Mortgaged
Property in compliance with applicable Environmental Laws is reasonably
likely to produce a greater recovery on a net present value basis than
pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or threatened at
such Mortgaged Property relating to the use, management, disposal or release
of any hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state
or local law or regulation, or that, if any such materials are present for
which such action could be required, after consultation with an
environmental expert taking such actions with respect to the affected
Mortgaged Property is reasonably likely to produce a greater recovery on a
net present value basis than not taking such actions (after taking into
account the projected costs of such actions); provided, however, that such
compliance pursuant to clause (i) and (ii) above or the taking of such
action pursuant to this clause (iii) shall only be required to the extent
that the cost thereof is a Servicing Advance of the applicable Master
Servicer pursuant to this Agreement, subject to the provisions of Section
4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the applicable Master Servicer shall treat such cost as a Servicing
Advance subject to the provisions of Section 4.4 hereof; provided that, in the
latter event, the applicable Special Servicer shall use its good faith
reasonable business efforts to recover such cost from the Mortgagor.
(e) If the applicable Special Servicer determines, pursuant to Section
9.12(c), that taking such actions as are necessary to bring any Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, removal, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, is not reasonably likely to
produce a greater recovery on a net present value basis than not taking such
actions (after taking into account the projected costs of such actions) or than
not pursuing a claim under the Environmental Insurance Policy, then such Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust, including, without limitation, releasing the lien of the related
Mortgage. If the applicable Special Servicer determines that a material
possibility exists that Liquidation Expenses with respect to Mortgaged Property
(taking into account the cost of bringing it into compliance with applicable
Environmental Laws) would exceed the Principal Balance of the related Mortgage
Loan, such Special Servicer shall not attempt to bring such Mortgaged Property
into compliance and shall not acquire title to such Mortgaged Property unless it
has received the written consent of the Trustee to such action.
Notwithstanding any provision of this Agreement to the contrary, the
applicable Special Servicer shall not foreclose on any Mortgaged Property in
anticipation of pursuing a claim under the related Environmental Insurance
Policy, unless the applicable Special Servicer shall have first reviewed such
Environmental Insurance Policy.
(f) The applicable Special Servicer shall have the right to determine,
in accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
Section 9.13 Foreclosure
In the event that the Trust obtains, through foreclosure on a Mortgage
or otherwise, the right to receive title to a Mortgaged Property, the applicable
Special Servicer, as its agent, shall direct the appropriate party to deliver
title to the REO Property to the Trustee or its nominee.
The applicable Special Servicer may consult with counsel to determine
when an Acquisition Date shall be deemed to occur under the REMIC Provisions
with respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The applicable Special Servicer, on behalf of
the Trust, shall sell the REO Property expeditiously, but in any event within
the time period, and subject to the conditions, set forth in Section 9.15.
Subject to Section 9.15, the applicable Special Servicer shall manage, conserve,
protect and operate the REO Property for the holders of beneficial interests in
the Trust solely for the purpose of its prompt disposition and sale.
Section 9.14 Operation of REO Property
(a) Each Special Servicer shall segregate and hold all funds collected
and received in connection with the operation of each REO Property (excluding
the Mortgaged Properties relating to the Non-Trust Serviced Pari Passu Loan)
separate and apart from its own funds and general assets and shall establish and
maintain with respect to each such REO Property one or more accounts held in
trust for the benefit of the Certificateholders in the name of "U.S. Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates Series 2007-IQ13" (each, an "REO Account"), which shall be an
Eligible Account. Amounts in any REO Account shall be invested in Eligible
Investments. The Special Servicers shall deposit all funds received with respect
to such an REO Property in the applicable REO Accounts within two days of
receipt. The Special Servicers shall account separately for funds received or
expended with respect to each such REO Property. All funds in each REO Account
may be invested only in Eligible Investments. The applicable Special Servicer
shall notify the Trustee and the applicable Master Servicer in writing of the
location and account number of each REO Account and shall notify the Trustee
prior to any subsequent change thereof.
(b) On or before 2:00 p.m. on each Special Servicer Remittance Date,
the applicable Special Servicer shall withdraw from the applicable REO Account
and remit to the Master Servicer for deposit in the applicable Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties; provided, however, that (i) the applicable
Special Servicer may retain in such REO Account such portion of such proceeds
and collections as may be necessary to maintain in such REO Account sufficient
funds for the proper operation, management and maintenance of the related REO
Property, including, without limitation, the creation of reasonable reserves for
repairs, replacements, and necessary capital improvements and other related
expenses. The applicable Special Servicer shall notify the applicable Master
Servicer of all such remittances (and the REO Properties to which the
remittances relate) made into the applicable Certificate Account and (ii) the
applicable Special Servicer shall be entitled to withdraw from the REO Account
and pay itself as additional special servicing compensation any interest or net
reinvestment income earned on funds deposited in the applicable REO Account. The
amount of any losses incurred in respect of any such investments shall be for
the account of the applicable Special Servicer which shall deposit the amount of
such loss (to the extent not offset by income from other investments) in the
applicable REO Account, out of its own funds immediately as realized. If the
applicable Special Servicer deposits in any REO Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such REO
Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the applicable
Special Servicer shall have full power and authority, in consultation with the
Operating Adviser, and subject to the specific requirements and prohibitions of
this Agreement, to do any and all things in connection therewith as are
consistent with the Servicing Standard, subject to the REMIC Provisions, and in
such manner as the applicable Special Servicer deems to be in the best interest
of the Trust, and, consistent therewith, may advance from its own funds to pay
for the following items (which amounts shall be reimbursed by the applicable
Master Servicer or the Trust subject to Sections 4.4 in accordance with Section
4.6(d)), to the extent such amounts cannot be paid from REO Income:
(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 could result or have resulted in the imposition of a lien
thereon; and
(iii) all costs and expenses necessary to maintain, operate, lease and
sell such REO Property (other than capital expenditures).
(d) The applicable Special Servicer may, and to the extent necessary to
(i) preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the provisions
of Section 856 of the Code and Treasury Regulations Section 1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, 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 Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust
in accordance with the contract between the Trust and the Independent
Contractor in an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any such
contract or to actions taken through any such Independent Contractor shall
be deemed to relieve the applicable Special Servicer of any of its duties
and obligations to the Trustee with respect to the operation and management
of any such REO Property;
(v) if the Independent Contractor is an Affiliate of the applicable
Special Servicer, the consent of the Operating Adviser and a
Nondisqualification Opinion must be obtained; and
(vi) the applicable Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
(e) The applicable Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
pursuant to this subsection (d) for indemnification of such Special Servicer by
such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of the
Special Servicer which shall be paid by such Special Servicer) shall be paid
from the income derived from the REO Property. To the extent that the income
from the REO Property is insufficient, such fees shall be advanced by the
applicable Master Servicer as a Servicing Advance, subject to the provisions of
Section 4.4 and Section 4.6(d) hereof.
(f) Notwithstanding any other provision of this Agreement, the Special
Servicers shall not rent, lease, or otherwise earn income on behalf of the Trust
or the beneficial owners thereof with respect to REO Property (excluding the
Mortgaged Properties relating to the Non-Trust Serviced Pari Passu Loan) which
might cause the REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (without giving effect to the
final sentence thereof) or result in the receipt by any REMIC of any "income
from nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code
or any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless (i) the Trustee and the applicable Special Servicer have
received an Opinion of Counsel (at the Trust's sole expense) to the effect that,
under the REMIC Provisions and any relevant proposed legislation, any income
generated for REMIC I by the REO Property would not result in the imposition of
a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the
applicable Special Servicer determines the income or earnings with respect to
such REO Property will offset any tax under the REMIC Provisions relating to
such income or earnings and will maximize the net recovery from the REO Property
to the Certificateholders. The applicable Special Servicer shall notify the
Trustee and the applicable Master Servicer of any election by it to incur such
tax, and such Special Servicer (i) shall hold in escrow in an Eligible Account
an amount equal to the tax payable thereby from revenues collected from the
related REO Property, (ii) provide the Trustee with all information for the
Trustee to file the necessary tax returns in connection therewith and (iii) upon
request from the Trustee, pay from such account to the Trustee the amount of the
applicable tax. The Trustee shall file the applicable tax returns based on the
information supplied by the applicable Special Servicer and pay the applicable
tax from the amounts collected by such Special Servicer.
Subject to, and without limiting the generality of the foregoing, the
applicable Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New Lease with
respect to the 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 the REO Property, other
than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent Contractor, or
allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after
the Acquisition Date; unless, in any such case, the applicable Special
Servicer has requested and received an Opinion of Counsel at the Trust's
sole expense 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 (without giving effect to the final sentence thereof)
at any time that it is held by the applicable REMIC Pool, in which case the
applicable Special Servicer may take such actions as are specified in such
Opinion of Counsel.
Section 9.15 Sale of REO Property
(a) In the event that title to any REO Property (excluding the
Mortgaged Properties relating to the Non-Trust Serviced Pari Passu Loan) is
acquired by the Trust in respect of any Specially Serviced Mortgage Loan, the
deed or certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The applicable Special Servicer, after notice to the Operating
Adviser, shall sell any REO Property as soon as practicable consistent with the
objective of maximizing proceeds for all Certificateholders, but in no event
later than the end of the third calendar year following the end of the year of
its acquisition, and in any event prior to the Final Rated Distribution Date,
unless (i) the Trustee, on behalf of the applicable REMIC Pool, has been granted
an extension of time (an "Extension") (which extension shall be applied for at
least 60 days prior to the expiration of the period specified above) by the
Internal Revenue Service to sell such REO Property (a copy of which shall be
delivered to the Trustee upon request), in which case the applicable Special
Servicer shall continue to attempt to sell the REO Property for its fair market
value for such period longer than the period specified above as such Extension
permits or (ii) the applicable Special Servicer seeks and subsequently receives,
at the expense of the Trust, a Nondisqualification Opinion, addressed to the
Trustee and such Special Servicer, to the effect that the holding by the Trust
of such REO Property subsequent to the period specified above after its
acquisition will not result in the imposition of taxes on "prohibited
transactions" of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause
the related REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Trustee has not received an Extension or
such Opinion of Counsel and the applicable Special Servicer is not able to sell
such REO Property within the period specified above, or if an Extension has been
granted and the applicable Special Servicer is unable to sell such REO Property
within the extended time period, the applicable Special Servicer shall, after
consultation with the Operating Adviser, before the end of such period or
extended period, as the case may be, auction the REO Property to the highest
bidder (which may be the applicable Special Servicer) in accordance with the
Servicing Standard; provided, however, that if an Interested Person intends to
bid on the REO Property, (i) the applicable Special Servicer (or, if such
Interested Person is the applicable Special Servicer or an Affiliate of the
applicable Special Servicer, the Trustee) shall promptly obtain, at the expense
of the Trust, an Appraisal of such REO Property (or internal valuation in
accordance with the procedures specified in Section 6.9) and (ii) the Interested
Person shall not bid less than the fair market value set forth in such
Appraisal. The Depositor may not purchase REO Property at a price in excess of
the fair market value thereof.
Notwithstanding the foregoing, no Interested Person shall be permitted
to purchase the REO Property at a price less than an amount equal to the fair
value of the REO Property, as determined by the applicable Special Servicer (or,
if such Interested Person is the applicable Special Servicer or an Affiliate of
the applicable Special Servicer, the Trustee). Prior to the applicable Special
Servicer's or Trustee's, as applicable, determination of fair value referred to
above, the fair value of an REO Property shall be deemed to be an amount equal
to the Purchase Price. The applicable Special Servicer or Trustee, as
applicable, shall determine the fair value of an REO Property as soon as
reasonably practical after receipt of notice of an Interested Party's desire to
purchase such REO Property, and such Special Servicer or Trustee, as applicable,
shall promptly notify such Interested Party (and the Trustee, if applicable) of
the fair value. The applicable Special Servicer or Trustee, as applicable, is
required to recalculate the fair value of the REO Property if there has been a
material change in circumstances or the applicable Special Servicer or Trustee,
as applicable, has received new information (including the receipt of a third
party bid to purchase the REO Property), either of which has a material effect
on the fair value, provided that such Special Servicer or Trustee, as
applicable, shall be required to recalculate the fair value of the REO Property
if the time between the date of last determination of the fair value of the REO
Property and the date of the purchase of the REO Property by such Interested
Party has exceeded 60 days. Upon any recalculation, the applicable Special
Servicer or Trustee, as applicable, shall be required to promptly notify in
writing such Interested Party (and the Trustee, if applicable) of the revised
fair value. In determining fair value, the applicable Special Servicer or
Trustee, as applicable, shall take into account, among other factors, the
results of any appraisal or updated appraisal that it or the applicable Master
Servicer may have obtained in accordance with this Agreement within the prior
twelve months; the physical condition of the REO Property; the state of the
local economy; any other bids received with respect to the REO Property; and the
Trust's obligation to dispose of any REO Property as soon as practicable
consistent with the objective of maximizing proceeds for all Certificateholders,
but in no event later than the three-year period (or such extended period)
specified in this Section 9.15. In performing its obligations under this Section
9.15(a), each Special Servicer or the Trustee, as applicable, may, at the
expense of the party desiring to purchase the REO Property, engage an appraiser
or other expert in real estate matters to determine the fair value of an REO
Property and may rely conclusively upon such Person's determination, which
determination shall take into account the factors set forth in the preceding
sentence.
(b) Within 30 days of the sale of the REO Property, the applicable
Special Servicer shall provide to the Trustee and the applicable Master Servicer
a statement of accounting for such REO Property, including without limitation,
(i) the Acquisition Date for the REO Property, (ii) the date of disposition of
the REO Property, (iii) the sale price and related selling and other expenses,
(iv) accrued interest (including interest deemed to have accrued) on the
Specially Serviced Mortgage Loan to which the REO Property related, calculated
from the Acquisition Date to the disposition date, (v) final property operating
statements, and (vi) such other information as the Trustee may reasonably
request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the applicable Certificate Account within one
Business Day of receipt.
Section 9.16 Realization on Collateral Security
In connection with the enforcement of the rights of the Trust to any
property securing any Specially Serviced Mortgage Loan other than the related
Mortgaged Property, the applicable Special Servicer shall consult with counsel
to determine how best to enforce such rights in a manner consistent with the
REMIC Provisions and shall not, based on a Nondisqualification Opinion addressed
to the applicable Special Servicer and the Trustee (the cost of which shall be
an expense of the Trust) take any action that could result in the failure of any
REMIC Pool to qualify as a REMIC while any Certificates are outstanding, unless
such action has been approved by a vote of 100% of each Class of
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders).
Section 9.17 [Reserved]
Section 9.18 [Reserved]
Section 9.19 [Reserved]
Section 9.20 Merger or Consolidation
Any Person into which a Special Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion, other change in form or
consolidation to which such Special Servicer shall be a party, or any Person
succeeding to substantially all of the servicing business of such Special
Servicer, shall be the successor of such Special Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation. If the conditions to the proviso in the foregoing
sentence are not met, the Trustee may terminate, and if the conditions to the
proviso in the following paragraph are not met, the Trustee shall terminate,
such Special Servicer's servicing of the Specially Serviced Mortgage Loans
pursuant hereto, such termination to be effected in the manner set forth in
Section 9.31.
Notwithstanding the foregoing, for so long as the Trust is subject to
the reporting requirements of the Exchange Act, neither Special Servicer may
remain a Special Servicer under this Agreement after (x) being merged or
consolidated with or into any Person that is a Prohibited Party, or (y)
transferring all or substantially all of its assets to any Person if such Person
is a Prohibited Party, except to the extent (i) such Special Servicer is the
surviving entity of such merger, consolidation or transfer or (ii) the Depositor
consents to such merger, consolidation or transfer, which consent shall not be
unreasonably withheld.
Section 9.21 Resignation of the Special Servicer
(a) Except as otherwise provided in Section 9.20 or this Section 9.21,
a Special Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that such Special Servicer's duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it. Any such
determination permitting the resignation of a Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the applicable
Master Servicer, the Operating Adviser and the Trustee. No such resignation
shall become effective until a successor servicer designated by the Operating
Adviser and the Trustee shall have (i) assumed such Special Servicer's
responsibilities and obligations under this Agreement and (ii) Rating Agency
Confirmation shall have been obtained. Notice of such resignation shall be given
promptly by the applicable Special Servicer to the applicable Master Servicer
and the Trustee.
(b) A Special Servicer may resign from the obligations and duties
hereby imposed on it, upon 30 days notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
applicable Special Servicer on substantially the same terms and conditions, and
for not more than equivalent compensation as that herein provided, (ii) the
successor Special Servicer has assets of at least $15,000,000 and (iii) Rating
Agency Confirmation is obtained with respect to such resignation, as evidenced
by a letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the applicable Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the applicable Special Servicer hereunder in form and
substance reasonably satisfactory to the Trustee.
(d) Upon any resignation or termination of a Special Servicer, it shall
retain the right to receive any and all Work-Out Fees payable in respect of (i)
Mortgage Loans for which it acted as Special Servicer that became Rehabilitated
Mortgage Loans during the period that it acted as Special Servicer and that were
still Rehabilitated Mortgage Loans at the time of such resignation or
termination or (ii) any Specially Serviced Mortgage Loan for which such Special
Servicer has cured the event of default under such Specially Serviced Mortgage
Loan through a modification, restructuring or workout negotiated by such Special
Servicer and evidenced by a signed writing, but which had not as of the time
such Special Servicer was terminated, become a Rehabilitated Mortgage Loan
solely because it had not been a performing loan for 90 consecutive days and
which subsequently becomes a Rehabilitated Mortgage Loan as a result of the loan
being a performing loan for such 90 consecutive day period (and the successor
Special Servicer shall not be entitled to any portion of such Work-Out Fees), in
each case until such time (if any) as such Mortgage Loan again becomes a
Specially Serviced Mortgage Loan or are no longer included in the Trust or if
the related Mortgaged Property becomes an REO Property.
Section 9.22 Assignment or Delegation of Duties by the Special
Servicers
Each Special Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of such Special Servicer or Sub-Servicers
(as provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by such Special Servicer hereunder
or (B) assign and delegate all of its duties hereunder to a single Person. In
the case of any such assignment and delegation in accordance with the
requirements of clause (A) of this Section, such Special Servicer shall not be
released from its obligations under this Agreement. In the case of any such
assignment and delegation in accordance with the requirements of clause (B) of
this Section, the applicable Special Servicer shall be released from its
obligations under this Agreement, except that such Special Servicer shall remain
liable for all liabilities and obligations incurred by it as such Special
Servicer hereunder prior to the satisfaction of the following conditions: (i)
such Special Servicer gives the Depositor, the applicable Master Servicer, the
Operating Adviser and the Trustee notice of such assignment and delegation; (ii)
such purchaser or transferee accepting such assignment and delegation executes
and delivers to the Depositor and the Trustee an agreement accepting such
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of such Special Servicer,
with like effect as if originally named as a party to this Agreement; (iii) the
purchaser or transferee has assets in excess of $15,000,000; (iv) such
assignment and delegation is the subject of a Rating Agency Confirmation; and
(v) the Depositor consents to such assignment and delegation, such consent not
be unreasonably withheld. Notwithstanding the above, a Special Servicer may
appoint Sub-Servicers in accordance with Section 9.39 hereof.
Section 9.23 Limitation on Liability of the Special Servicers and
Others
(a) Neither any Special Servicer nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of such Special Servicer shall be under any liability to the
Certificateholders or the Trustee for any action taken or for refraining from
the taking of any action in good faith and using reasonable business judgment,
consistent with the Servicing Standard; provided that this provision shall not
protect a Special Servicer or any such Person against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder. The Special Servicers and any partner,
representative, Affiliate, member, manager, director, officer, employee or agent
of the Special Servicers may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person (including, without
limitation, the information and reports delivered by or at the direction of the
applicable Master Servicer or any partner, representative, Affiliate, member,
manager, director, officer, employee or agent of the applicable Master Servicer)
respecting any matters arising hereunder. A Special Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Specially Serviced Mortgage Loans in
accordance with this Agreement; provided that such Special Servicer may in its
sole discretion undertake any such action which it may reasonably deem necessary
or desirable in order to protect the interests of the Certificateholders and the
Trustee in the Specially Serviced Mortgage Loans. In such event, all legal
expenses and costs of such action (other than those that are connected with the
routine performance by a Special Servicer of its duties hereunder) shall be
expenses and costs of the Trust, and a Special Servicer shall be entitled to be
reimbursed therefor as provided by Section 5.2 hereof. Notwithstanding any term
in this Agreement, a Special Servicer shall not be relieved from the requirement
that it act in accordance with the Servicing Standard by virtue of taking any
action at the direction of the Operating Adviser and shall not be relieved from
liability otherwise imposed on the Special Servicers pursuant to Section 6.3 of
this Agreement.
(b) In addition, a Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Special Servicer and conforming to the requirements
of this Agreement. Neither of the Special Servicers, nor any partner,
representative, Affiliate, member, manager, director, officer, employee or
agent, shall be personally liable for any error of judgment made in good faith
by any officer, unless it shall be proved that such Special Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the Special
Servicers, nor any partner, representative, Affiliate, member, manager,
director, officer, employee or agent, shall be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement. A Special Servicer shall be entitled to rely on reports and
information supplied to it by the applicable Master Servicer and the related
Mortgagors and shall have no duty to investigate or confirm the accuracy of any
such report or information.
(c) A Special Servicer shall not be obligated to incur any liabilities,
costs, charges, fees or other expenses which relate to or arise from any breach
of any representation, warranty or covenant made by the Depositor, the
applicable Master Servicer or the Trustee in this Agreement. The Trust shall
indemnify and hold harmless such Special Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent such
amounts are not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) a 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, appraisal, bond or other
paper or document (in paper or electronic format) believed or in good faith
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) a Special Servicer may consult with counsel, and any written
advice 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;
(iii) a Special Servicer shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by
this Agreement; and
(iv) a Special Servicer, in preparing any reports hereunder, may rely,
and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper (in paper or electronic
format) reasonably believed or in good faith believed by it to be genuine.
(e) Each Special Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of such Special Servicer
shall be indemnified by the applicable Master Servicer, the Trustee and the
Paying Agent, as the case may be, and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action or claim relating to the applicable Master Servicer's, the
Trustee's or the Paying Agent's, as the case may be, respective willful
misfeasance, bad faith or negligence in the performance of its respective duties
hereunder or by reason of negligent disregard by such Person of its respective
duties hereunder, other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith or negligence in the performance of any of
such Special Servicer's duties hereunder or by reason of negligent disregard of
such Special Servicer's obligations and duties hereunder. Each Special Servicer
shall promptly notify the applicable Master Servicer, the Trustee and the Paying
Agent, if a claim is made by a third party entitling a Special Servicer to
indemnification hereunder, whereupon the applicable Master Servicer, the Trustee
or the Paying Agent, in each case, to the extent the claim was made in
connection with its willful misfeasance, bad faith or negligence, shall assume
the defense of any such claim (with counsel reasonably satisfactory to such
Special Servicer). Any failure to so notify the applicable Master Servicer, the
Trustee or the Paying Agent, shall not affect any rights a Special Servicer may
have to indemnification hereunder or otherwise, unless the interest of the
applicable Master Servicer, the Trustee or the Paying Agent is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of a Special
Servicer. Such indemnity shall survive the termination of this Agreement or the
resignation or removal of such Special Servicer hereunder. Any payment hereunder
made by the applicable Master Servicer, the Trustee or the Paying Agent, as the
case may be, pursuant to this paragraph to the applicable Special Servicer shall
be paid from the applicable Master Servicer's, the Trustee's or the Paying
Agent's, as the case may be, own funds, without reimbursement from the Trust
therefor, except achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent or the applicable Master Servicer shall be reimbursed by the party so paid
if a court of competent jurisdiction makes a final judgment that the conduct of
the Trustee, the Paying Agent or the applicable Master Servicer, as the case may
be, was not culpable of willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or of negligent disregard of its
respective duties hereunder or the indemnified party is found to have acted with
willful misfeasance, bad faith or negligence.
Section 9.24 Indemnification; Third-Party Claims
(a) Each Special Servicer and any partner, representative, Affiliate,
member, manager, director, officer, employee or agent of each such Special
Servicer shall be indemnified by the Trust, and held harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action or claim relating to (i) this Agreement, any
Mortgage Loan, any REO Property or the Certificates or any exercise of any right
under this Agreement, and (ii) any action taken by such Special Servicer in
accordance with the instruction delivered in writing to such Special Servicer by
the Trustee or the applicable Master Servicer pursuant to any provision of this
Agreement, and such Special Servicer and each of its partners, representatives,
Affiliates, members, managers, directors, officers, employees or agents shall in
each case be entitled to indemnification from the Trust for any loss, liability
or expense (including attorneys' fees) incurred in connection with the provision
by such Special Servicer of any information included by such Special Servicer in
the report required to be provided by such Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The applicable Special Servicer shall assume the defense of any such
claim (with counsel reasonably satisfactory to such Special Servicer) and the
Trust shall pay, from amounts on deposit in the applicable Certificate Account
pursuant to Section 5.2, 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. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of such Special Servicer. Any expenses incurred or
indemnification payments made by the Trust shall be reimbursed by such Special
Servicer, if a court of competent jurisdiction makes a final, non-appealable
judgment that such Special Servicer was found to have acted with willful
misfeasance, bad faith or negligence.
(b) Each Special Servicer agrees to indemnify the Trust, and the
Trustee, the Depositor, the applicable Master Servicer, the Paying Agent and any
partner, representative, Affiliate, member, manager, director, officer,
employee, agent or Controlling Person of the Trustee, the Depositor and the
applicable Master Servicer, and hold them harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments,
and any other costs, liabilities, fees and expenses that the Trust or the
Trustee, the Depositor, the Paying Agent or the applicable Master Servicer may
sustain arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of such Special Servicer's duties hereunder or by
reason of negligent disregard of such Special Servicer's obligations and duties
hereunder by such Special Servicer. The Trustee, the Depositor, the Paying Agent
or the applicable Master Servicer shall immediately notify such Special Servicer
if a claim is made by a third party with respect to this Agreement or the
Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the
Depositor, the Paying Agent or the applicable Master Servicer, as the case may
be, to indemnification hereunder, whereupon such Special Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Trustee, the Depositor, the Paying Agent or the applicable Master Servicer, as
the case may be) 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
such Special Servicer shall not affect any rights the Trust or the Trustee, the
Depositor, the Paying Agent or the applicable Master Servicer may have to
indemnification under this Agreement or otherwise, unless Special Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of such Special Servicer, the Paying Agent or the
Trustee. Any expenses incurred or indemnification payments made by such Special
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final, non-appealable judgment that the conduct of such
Special Servicer was not culpable of willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or of negligent
disregard of its respective duties hereunder or the indemnified party is found
to have acted with willful misfeasance, bad faith or negligence.
(c) Each initial applicable Special Servicer and the Depositor
expressly agree that the only information furnished by or on behalf of such
Special Servicer for inclusion in the Preliminary Prospectus Supplement and the
Final Prospectus Supplement is the information set forth in the paragraphs under
the caption (i) "TRANSACTION PARTIES--The Special Servicers--The General Special
Servicer," with respect to the General Special Servicer, and (ii) "TRANSACTION
PARTIES--The Special Servicers--National Consumer Cooperative Bank," with
respect to the Co-op Special Servicer, of the Preliminary Prospectus Supplement
and Final Prospectus Supplement.
(d) The 2007-HQ11 Special Servicer and any partner, representative,
Affiliate, member, manager, director, officer, employee or agent of the
2007-HQ11 Special Servicer shall be indemnified by the Trust and held harmless
against (i) the Trust's pro rata share of any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
relating to the 2007-HQ11 Pooling and Servicing Agreement and this Agreement,
and relating to the Non-Trust-Serviced Pari Passu Loan (but excluding any such
losses allocable to the Non-Trust Serviced Companion Loan), reasonably requiring
the use of counsel or the incurring of expenses other than any losses incurred
by reason of the 2007-HQ11 Special Servicer's willful misfeasance, bad faith or
negligence in the performance of its duties under the 2007-HQ11 Pooling and
Servicing Agreement and (ii) any claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses relating to the Non-Trust-Serviced Pari Passu Loan, but only to the
extent that such losses arise out of the actions of the General Master Servicer,
the General Special Servicer or the Trustee, and only to the extent that such
actions are in violation of such party's duties under the provisions of the this
Agreement and to the extent that such actions are the result of such party's
negligence, bad faith or willful misconduct.
Section 9.25 [Reserved]
Section 9.26 Special Servicers May Own Certificates
A Special Servicer or any agent of such Special Servicer in its
individual capacity or in any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if they were not a Special
Servicer or such agent. Any such interest of the Special Servicer or such agent
in the Certificates shall not be taken into account when evaluating whether
actions of such Special Servicer are consistent with its obligations in
accordance with the Servicing Standard regardless of whether such actions may
have the effect of benefiting the Class or Classes of Certificates owned by such
Special Servicer.
Section 9.27 Tax Reporting
The Special Servicers shall notify the Master Servicers of (i) any
abandoned Mortgaged Property, (ii) any foreclosure upon a Mortgaged Property or
(iii) any indebtedness that is forgiven, which require reporting to the IRS. The
Special Servicers shall provide the necessary information to the Master
Servicers to allow the Master Servicers to comply with the Mortgagor tax
reporting requirements imposed by Sections 6050H, 6050J and 6050P of the Code
with respect to any Specially Serviced Mortgage Loan. The Special Servicers
shall provide to the Master Servicers copies of any such reports. The Master
Servicers shall forward such reports to the Trustee.
Section 9.28 Application of Funds Received
It is anticipated that the Master Servicers will be collecting all
payments with respect to the Mortgage Loans (other than payments with respect to
REO Income). If, however, a Special Servicer should receive any payments with
respect to any Mortgage Loan (other than REO Income), it shall, within two
Business Days of receipt from the Mortgagor or otherwise of any amounts
attributable to payments with respect to or the sale of any Mortgage Loan or any
Specially Serviced Mortgage Loan, if any (but not including REO Income, which
shall be deposited in the applicable REO Account as provided in Section 9.14
hereof), forward such payment (endorsed, if applicable, to the order of the
applicable Master Servicer) to the applicable Master Servicer. Such Special
Servicer shall notify the applicable Master Servicer of each such amount
received on or before the date required for the making of such deposit or
transfer, as the case may be, indicating the Mortgage Loan or Specially Serviced
Mortgage Loan to which the amount is to be applied and the type of payment made
by or on behalf of the related Mortgagor.
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions
The Special Servicers shall act in accordance with this Agreement and
the provisions of the Code relating to REMICs in order to create or maintain the
status of the Class EI Grantor Trust as a grantor trust and of any REMIC Pool as
a REMIC under the Code or, as appropriate, cooperate with the Trustee to adopt a
plan of complete liquidation. The Special Servicers shall not take any action or
(A) cause any REMIC Pool to take any action that would (i) endanger the status
of any REMIC Pool as a REMIC or the status of the Class EI Grantor Trust as a
grantor trust or (ii) subject to Section 9.14(f), result in the imposition of a
tax upon any REMIC Pool (including, but not limited to, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code or on prohibited
contributions pursuant to Section 860G(d) of the Code) or (B) cause the Class EI
Grantor Trust to take any action that could (i) endanger its status as a grantor
trust or (ii) result in the imposition of any tax upon the Class EI Grantor
Trust unless the Master Servicers, the Trustee have received a
Nondisqualification Opinion (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such tax. The Special Servicers shall comply with
the provisions of Article XII hereof.
Section 9.30 Termination
(a) The obligations and responsibilities of the Special Servicers
created hereby (other than the obligation of such Special Servicers to make
payments to the applicable Master Servicer as set forth in Section 9.28 and the
obligations of such Special Servicers pursuant to Sections 9.8 and 9.24 hereof)
shall terminate on the date which is the earliest of (i) the later of (A) the
final payment or other liquidation of the last Mortgage Loan remaining
outstanding (and final distribution to the Certificateholders) or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan (and final distribution to the Certificateholders), (ii) 60 days following
the date on which the Trustee or the Operating Adviser has given written notice
to Special Servicers that this Agreement is terminated pursuant to Section
9.30(b) or 9.30(c), respectively; and (iii) the effective date of any
resignation of a Special Servicer effected pursuant to and in accordance with
Section 9.21 or delegation of such Special Servicer's duties pursuant to clause
B of Section 9.22 (but only to the extent specifically set forth in Section
9.22).
(b) The Trustee may terminate (or, with respect to clause (x) below, at
the direction of the Depositor, shall terminate) a Special Servicer in the event
that (i) the Special Servicer has failed to remit any amount required to be
remitted to the Trustee, the applicable Master Servicer or the Depositor within
one Business Day following the date such amount was required to have been
remitted under the terms of this Agreement, (ii) such Special Servicer has
failed to deposit into any account any amount required to be so deposited or
remitted under the terms of this Agreement which failure continues unremedied
for one Business Day following the date on which such deposit or remittance was
first required to be made; (iii) such Special Servicer has failed to duly
observe or perform in any material respect any of the other covenants or
agreements of such Special Servicer set forth in this Agreement (other than,
subject to Section 13.14(c), the covenants or agreements set forth in Article
XIII, for so long as the Trust is subject to the reporting requirements of the
Exchange Act), and such Special Servicer has failed to remedy such failure
within thirty (30) days after written notice of such failure, requiring the same
to be remedied, shall have been given to such Special Servicer by the Depositor
or the Trustee, provided, however, that if such Special Servicer certifies to
the Trustee and the Depositor that such Special Servicer is in good faith
attempting to remedy such failure, and the Certificateholders would not be
affected thereby, such cure period will be extended to the extent necessary to
permit such Special Servicer to cure such failure; provided, however, that such
cure period may not exceed 90 days; (iv) such Special Servicer has made one or
more false or misleading representations or warranties herein that materially
and adversely affects the interest of any Class of Certificates and has failed
to cure such breach within thirty (30) days after notice of such breach,
requiring the same to be remedied, shall have been given to such Special
Servicer by the Depositor or the Trustee, provided, however, that if such
Special Servicer certifies to the Trustee and the Depositor that such Special
Servicer is in good faith attempting to remedy such failure, such cure period
may be extended to the extent necessary to permit such Special Servicer to cure
such failure; provided, however, that such cure period may not exceed 90 days;
(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, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against such Special Servicer and such decree
or order shall have remained in force undischarged or unstayed for a period of
60 days; (vi) such Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Special Servicer or of or
relating to all or substantially all of its property; (vii) such Special
Servicer thereof 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; (viii) such Special
Servicer ceases to have a special servicer rating of at least "CSS3" from Fitch,
or the Trustee receives written notice from Fitch that the continuation of the
Special Servicer in such capacity would result in the downgrade, qualification
or withdrawal of the then current rating then assigned by Fitch to any class of
certificates and citing servicing concerns with such Special Servicer as the
sole or a material factor in such rating action, and such notice is not
rescinded within 60 days; (ix) such Special Servicer is no longer listed on
S&P's Select Servicer List as a U.S. Commercial Mortgage Special Servicer and is
not reinstated to such status within 60 days or (x) for so long as the Trust is
subject to the reporting requirements of the Exchange Act, such Special
Servicer, or any Sub-Servicer or Additional Servicer appointed by such Special
Servicer (other than a Seller Sub-Servicer), shall fail to deliver any Exchange
Act reporting items required to be delivered by such servicer under Article XIII
of this Agreement at the times required under such Article. Such termination
shall be effective on the date after the date of any of the above events that
the Trustee specifies in a written notice to such Special Servicer specifying
the reason for such termination. The Operating Adviser shall have the right to
appoint a successor if the Trustee terminates the Special Servicer.
(c) The Operating Adviser shall have the right to direct the Trustee to
terminate a Special Servicer, with or without cause, provided that the Operating
Adviser shall appoint a successor Special Servicer who will execute and deliver
to the Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, whereby the successor Special Servicer agrees to assume and perform
punctually the duties of such terminated Special Servicer specified in this
Agreement; and provided, further, that the Trustee shall have received Rating
Agency Confirmation from each Rating Agency prior to the termination of such
Special Servicer. A Special Servicer shall not be terminated pursuant to this
subsection (c) until a successor Special Servicer shall have been appointed. The
Operating Adviser shall pay any costs and expenses incurred by the Trust in
connection with the removal and appointment of a Special Servicer (unless such
removal is based on any of the events or circumstances set forth in Section
9.30(b)). The Special Servicer being terminated shall execute and deliver such
document acknowledging its termination as may be reasonably required by any
Rating Agency.
(d) Any costs and expenses associated with the transfer of the special
servicing function (other than with respect to a termination without cause)
under Section 9.30(b) shall be borne by the predecessor Special Servicer and
shall be paid within 30 days of request therefor, otherwise, if the applicable
Special Servicer is terminated without cause, such costs and expenses shall be
payable from the Trust, if the terminating party is the Trustee or the
Depositor, or the Operating Adviser, if the Operating Adviser is the terminating
party.
Section 9.31 Procedure Upon Termination
(a) Notice of any termination pursuant to clause (i)(B) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the applicable Special Servicer to the
Trustee no later than the later of (i) five Business Days after the liquidation
of the last REO Property or (ii) the sixth day of the month in which the final
Distribution Date will occur. Upon any such termination, the rights and duties
of the applicable Special Servicer (other than the rights and duties of the
applicable Special Servicer pursuant to Sections 9.8, 9.21, 9.23 and 9.24
hereof) shall terminate and the applicable Special Servicer shall transfer to
the applicable Master Servicer the amounts remaining in each REO Account and
shall thereafter terminate each REO Account and any other account or fund
maintained with respect to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given to a
Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of such Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided that in no event shall the termination of the Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded such Special Servicer as successor Special Servicer, notified such
Special Servicer of such designation, and such successor Special Servicer shall
have assumed such Special Servicer's obligations and responsibilities, as set
forth in an agreement substantially in the form hereof, with respect to the
Specially Serviced Mortgage Loans. The Trustee or other successor Special
Servicer may not succeed such Special Servicer as Special Servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of a Special Servicer pursuant to Section 9.20 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicers, 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.
Each Special Servicer agrees to cooperate with the Trustee in effecting the
termination of a Special Servicer's responsibilities and rights hereunder as
Special Servicer including, without limitation, providing the Trustee all
documents and records in electronic or other form reasonably requested by it to
enable the successor Special Servicer designated by the Trustee to assume such
Special Servicer's functions hereunder and to effect the transfer to such
successor for administration by it of all amounts which shall at the time be or
should have been deposited by the applicable Special Servicer in the applicable
REO Account and any other account or fund maintained or thereafter received with
respect to the Specially Serviced Mortgage Loans.
(c) Upon any resignation of a Special Servicer pursuant to Section 9.21
or termination of a Special Servicer pursuant to Section 9.30 or appointment of
a successor to the applicable Special Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
Within 30 days after the occurrence of any Event of Default with
respect to the Special Servicer of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee shall transmit by mail to all
Certificateholders and each Rating Agency notice of such Event of Default,
unless such Event of Default shall have been cured or waived.
Section 9.32 Certain Special Servicer Reports
(a) The Special Servicers, for each Specially Serviced Mortgage Loan,
shall provide to the applicable Master Servicer by 2:00 p.m. (New York time) on
the date that is one Business Day after the Determination Date for each month,
the CMSA Special Servicer Loan File in such electronic format as is mutually
acceptable to each applicable Master Servicer and each applicable Special
Servicer and in CMSA format. The applicable Master Servicer may use such reports
or information contained therein to prepare its reports and such Master Servicer
may, at its option, forward such reports directly to the Depositor and the
Rating Agencies.
(b) The Special Servicers shall maintain accurate records, prepared by
a Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Operating Adviser and the applicable Master Servicer no later than
the tenth Business Day following such Final Recovery Determination.
(c) The Special Servicers shall provide to the applicable Master
Servicer or the Trustee at the reasonable request in writing of such Master
Servicer or the Trustee, any information in its possession with respect to the
Specially Serviced Mortgage Loans which the applicable Master Servicer or
Trustee, as the case may be, shall require in order for the applicable Master
Servicer or the Trustee to comply with its obligations under this Agreement;
provided that the applicable Special Servicer shall not be required to take any
action or provide any information that the applicable Special Servicer
determines will result in any material cost or expense to which it is not
entitled to reimbursement hereunder or will result in any material liability for
which it is not indemnified hereunder. The applicable Master Servicer shall
provide the applicable Special Servicer at the reasonable request of the
applicable Special Servicer any information in its possession with respect to
the Mortgage Loans which such Special Servicer shall require in order for such
Special Servicer to comply with its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance Date,
the Special Servicer shall forward to the applicable Master Servicer a statement
setting forth the status of each REO Account as of the close of business on such
Special Servicer Remittance Date, stating that all remittances required to be
made by it as required by this Agreement to be made by such Special Servicer
have been made (or, if any required distribution has not been made by such
Special Servicer, specifying the nature and status thereof) and showing, for the
period from the day following the preceding Special Servicer Remittance Date to
such Special Servicer Remittance Date, the aggregate of deposits into and
withdrawals from each REO Account for each category of deposit specified in
Section 5.1 of this Agreement and each category of withdrawal specified in
Section 5.2 of this Agreement.
(e) With respect to Specially Serviced Mortgage Loans, the Special
Servicers shall use reasonable efforts to obtain and, to the extent obtained, to
deliver electronically to the Master Servicers (subject to Section 8.14 herein),
the Trustee, the Rating Agencies and the Operating Adviser, on or before April
15 of each year, commencing with April 15, 2007, (i) copies of the prior year
operating statements and, except with respect to the Co-op Mortgage Loans,
quarterly statements, if available, for each Mortgaged Property underlying a
Specially Serviced Mortgage Loan or REO Property as of its fiscal year end,
provided that either the related Mortgage Note or Mortgage requires the
Mortgagor to provide such information, or if the related Mortgage Loan has
become an REO Property, (ii) a copy of the most recent rent roll with respect to
Mortgage Loans other than Co-op Mortgage Loans, available for each Mortgaged
Property, and (iii) a table, setting forth the Debt Service Coverage Ratio and
occupancy with respect to each Mortgaged Property covered by the operating
statements delivered above.
(f) The Special Servicers shall deliver to the applicable Master
Servicer, the Depositor, the Paying Agent and the Trustee all such other
information with respect to the Specially Serviced Mortgage Loans at such times
and to such extent as the applicable Master Servicers, the Trustee, the Paying
Agent or the Depositor may from time to time reasonably request; provided,
however, that the applicable Special Servicer shall not be required to produce
any ad hoc non-standard written reports with respect to such Mortgage Loans
except if any Person (other than the Paying Agent or the Trustee) requesting
such report pays a reasonable fee to be determined by the applicable Special
Servicer.
(g) The applicable Special Servicer shall deliver electronically a
written Inspection Report of each Specially Serviced Mortgage Loan in accordance
with Section 9.4(b) to the Operating Adviser.
(h) Notwithstanding anything to the contrary herein, as a condition to
such Special Servicer making any report or information available upon request to
any Person other than the parties hereto or any Operating Adviser, such Special
Servicer may require that the recipient of such information acknowledge that
such Special Servicer may contemporaneously provide such information to the
Depositor, the Trustee, the Master Servicers, the Primary Servicer, the Sellers,
the Placement Agent, any Underwriter, any Rating Agency, and/or the
Certificateholders or Certificate Owners. Any transmittal of information by a
Special Servicer to any Person other than the Trustee, the Master Servicers, any
Primary Servicer, the 2007-HQ11 Master Servicer, the Rating Agencies, the
Operating Adviser or the Depositor may be accompanied by a letter from the
applicable Special Servicer containing the following provision:
"By receiving the information set forth herein, you hereby acknowledge
and agree that the United States securities laws restrict any Person
who possesses material, non-public information regarding the Trust
which issued Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13 from purchasing or selling
such Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You also
acknowledge and agree that such information is being provided to you
for the purpose of, and such information may be used only in connection
with, evaluation by you or another Certificateholder, Certificate Owner
or prospective purchaser of such Certificates or beneficial interest
therein."
Section 9.33 Special Servicers to Cooperate with the Master Servicers
and Trustee
The Special Servicers shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by the applicable
Master Servicer, the Trustee or any Primary Servicer to enable it to perform its
duties under this Agreement or any Primary Servicing Agreement, as applicable;
provided that no such request shall (i) require or cause a Special Servicer to
violate the Code, any provision of this Agreement, including such Special
Servicer's obligation to act in accordance with the servicing standards set
forth in this Agreement and to maintain the REMIC status of any REMIC Pool or
(ii) expose such Special Servicer, the Trust or the Trustee to liability or
materially expand the scope of such Special Servicer's responsibilities under
this Agreement. In addition, the Special Servicers shall notify the applicable
Master Servicer of all expenditures incurred by it with respect to the Specially
Serviced Mortgage Loans which are required to be made by the applicable Master
Servicers as Servicing Advances as provided herein, subject to the provisions of
Section 4.4 hereof. The Special Servicers shall also remit all invoices relating
to Servicing Advances promptly upon receipt of such invoices.
Section 9.34 [Reserved]
Section 9.35 [Reserved]
Section 9.36 Sale of Defaulted Mortgage Loans
(a) The applicable Special Servicer and the holder of Certificates
evidencing the greatest percentage interest in the Controlling Class (each in
such capacity, together with any assignee, the "Option Holder") shall, in that
order, have the right, at its option (the "Option"), to purchase a Mortgage Loan
(other than the Non-Trust Serviced Pari Passu Loan) from the Trust at a price
equal to the Option Purchase Price upon receipt of notice from the applicable
Special Servicer that such Mortgage Loan has become at least 60 days delinquent
as to any monthly debt service payment (or is 90 days delinquent as to its
Balloon Payment). The Option is exercisable, subject to the related Seller's
right (after receiving notice from the Trustee that an Option Holder intends to
exercise its Option) set forth in Section 2.3 to first repurchase such Mortgage
Loan, from that date until terminated pursuant to clause (e) below, and during
that period the Option shall be exercisable in any month only during the period
from the 10th calendar day of such month through the 25th calendar day,
inclusive, of such month. The Trustee on behalf of the Trust shall be obligated
to sell such Mortgage Loan upon the exercise of the Option (whether exercised by
the original holder thereof or by a holder that acquired such Option by
assignment), but shall have no authority to sell such Mortgage Loan other than
in connection with the exercise of an Option (or in connection with a repurchase
of a Mortgage Loan under Article II, an optional termination pursuant to Section
10.1 or a qualified liquidation of the REMIC Pools). Any Option Holder that
exercises the Option shall be required to purchase the applicable Mortgage Loan
within 4 Business Days following such exercise. If any Option Holder desires to
waive its right to exercise the Option, then it shall so notify the Trustee in
writing, and the Trustee shall promptly notify the next party eligible to hold
the Option set forth above of its rights hereunder. Any of the other parties
eligible to hold the Option set forth above may at any time notify the Trustee
in writing of its desire to exercise the Option, and the Trustee shall promptly
notify the current Option Holder (and the other parties eligible to hold the
Option) of such party's desire to exercise the Option. If the Option Holder
neither (i) exercises the Option nor (ii) surrenders its right to exercise the
Option within 3 Business Days of its receipt of that notice, then the Option
Holder's right to exercise the Option shall lapse, and the Trustee shall
promptly notify the next party eligible to hold the Option (and the other
parties eligible to hold the Option) of its rights thereunder.
(b) The "Option Purchase Price" shall be an amount equal to the fair
value of the related Mortgage Loan, as determined by the applicable Special
Servicer upon the request of any holder of the Option. The reasonable,
out-of-pocket expenses of each Special Servicer incurred in connection with any
such determination of the fair value of a Mortgage Loan shall be payable and
reimbursed to such Special Servicer as an expense of the Trust. Prior to the
applicable Special Servicer's determination of fair value referred to above, the
fair value of a Mortgage Loan shall be deemed to be an amount equal to the
Purchase Price plus (i) any prepayment penalty or yield maintenance charge then
payable upon the prepayment of such Mortgage Loan and (ii) the reasonable fees
and expenses of the applicable Special Servicer, the applicable Master Servicer
and the Trustee incurred in connection with the sale of the Mortgage Loan. The
applicable Special Servicer shall determine the fair value of a Mortgage Loan on
the later of (A) as soon as reasonably practical upon the Mortgage Loan becoming
60 days delinquent or upon the Balloon Payment becoming delinquent and (B) the
date that is 75 days after the applicable Special Servicer's receipt of the
Servicer Mortgage File relating to such Mortgage Loan, and such Special Servicer
shall promptly notify the Option Holder (and the Trustee and each of the other
parties set forth above that could become the Option Holder) of the Option
Purchase Price. The applicable Special Servicer is required to recalculate the
fair value of the Mortgage Loan if there has been a material change in
circumstances or the applicable Special Servicer has received new information,
including the receipt of a third party bid to purchase the Option, which has a
material effect on the fair value, provided that such Special Servicer shall be
required to recalculate the fair value of the Mortgage Loan if the time between
the date of last determination of the fair value of the Mortgage Loan and the
date of the exercise of the Option has exceeded 60 days. Upon any recalculation,
the applicable Special Servicer shall be required to promptly notify in writing
each Option Holder (and the Trustee and each of the other parties set forth
above that could become the Option Holder) of the revised Option Purchase Price.
Any such recalculation of the fair value of the Mortgage Loan shall be deemed to
renew the Option in its original priority at the recalculated price with respect
to any party as to which the Option had previously expired or been waived,
unless the Option has previously been exercised by an Option Holder at a higher
Option Purchase Price. In determining fair value, the applicable Special
Servicer shall take into account, among other factors, the results of any
Appraisal or updated Appraisal that it or the applicable Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months;
any views on fair value expressed by Independent investors in mortgage loans
comparable to the Mortgage Loan (provided that the applicable Special Servicer
shall not be obligated to solicit such views); the period and amount of any
delinquency on the affected Mortgage Loan; whether to the applicable Special
Servicer's actual knowledge, the Mortgage Loan is in default to avoid a
prepayment restriction; the physical condition of the related Mortgaged
Property; the state of the local economy; the expected recoveries from the
Mortgage Loan if the applicable Special Servicer were to pursue a workout or
foreclosure strategy instead of the Option being exercised; and the Trust's
obligation to dispose of any REO Property as soon as practicable consistent with
the objective of maximizing proceeds for all Certificateholders, but in no event
later than the three-year period (or such extended period) specified in Section
9.15. Notwithstanding the foregoing, the Option will not apply to the Non-Trust
Serviced Pari Passu Loan. The 2007-HQ11 Pooling and Servicing Agreement provides
for a comparable fair value call option for the Non-Trust Serviced Pari Passu
Loan, and anyone exercising the right to purchase the Non-Trust Serviced
Companion Loan under the 2007-HQ11 Pooling and Servicing Agreement must also
purchase the Non-Trust Serviced Pari Passu Loan from the Trust.
(c) Any Option relating to a Mortgage Loan shall be assignable to a
third party by the Option Holder at its discretion at any time after its receipt
of notice from the Special Servicer that an Option is exercisable with respect
to a specified Mortgage Loan, and upon such assignment such third party shall
have all of the rights granted to the Option Holder hereunder in respect of the
Option. Such assignment shall only be effective upon written notice (together
with a copy of the executed assignment and assumption agreement) being delivered
to the Trustee, the applicable Master Servicer and the applicable Special
Servicer, and none of such parties shall be obligated to recognize any entity as
an Option Holder absent such notice.
(d) If the applicable Special Servicer, the holder of Certificates
representing the greatest percentage interest in the Controlling Class or an
Affiliate of either thereof elects to exercise the Option, the Trustee shall be
required to determine whether the Option Purchase Price constitutes a fair price
for the Mortgage Loan. Upon request of the applicable Special Servicer to make
such a determination, the Trustee will do so within a reasonable period of time
(but in no event more than 15 Business Days). In doing so, the Trustee may rely
on the opinion of an Appraiser or other expert in real estate matters retained
by the Trustee at the expense of the party exercising the Option. The Trustee
may also rely on the most recent Appraisal of the related Mortgaged Property
that was prepared in accordance with this Agreement. If the Trustee were to
determine that the Option Purchase Price does not constitute a fair price, then
the applicable Special Servicer shall redetermine the fair value taking into
account the objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable as set
forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a work-out arrangement, (iii) been
foreclosed upon or otherwise resolved (including by a full or discounted
pay-off) or (iv) been purchased by the related Seller pursuant to Section 2.3.
(f) Unless and until an Option Holder exercises an Option, the
applicable Special Servicer shall continue to service and administer the related
Mortgage Loan in accordance with the Servicing Standard and this Agreement, and
shall pursue such other resolution or recovery strategies, including workout or
foreclosure, as is consistent with this Agreement and the Servicing Standard.
Section 9.37 Operating Adviser; Elections
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the operating adviser with respect to Specially
Serviced Mortgage Loans (the "Operating Adviser"). The Operating Adviser shall
be elected for the purpose of receiving reports and information from the Special
Servicers in respect of the Specially Serviced Mortgage Loans (including any
reports and information received by the General Special Servicer from the
2007-HQ11 Special Servicer with respect to the Non-Trust-Serviced Pari Passu
Loan).
(b) The initial Operating Adviser is LNR Securities Holdings, LLC, a
Delaware limited liability company. The Controlling Class shall give written
notice to the Trustee and the applicable Master Servicer of the appointment of
any subsequent Operating Adviser (in order to receive notices hereunder). If a
subsequent Operating Adviser is not so appointed, an election of an Operating
Adviser also shall be held. Notice of the meeting of the Holders of the
Controlling Class shall be mailed or delivered to each Holder by the Trustee,
not less than 10 nor more than 60 days prior to the meeting. The notice shall
state the place and the time of the meeting, which may be held by telephone. A
majority of Certificate Balance of the Certificates of the then Controlling
Class, present in person or represented by proxy, shall constitute a quorum for
the nomination of an Operating Adviser. At the meeting, each Holder shall be
entitled to nominate one Person to act as Operating Adviser. The Trustee shall
cause the election of the Operating Adviser to be held as soon thereafter as is
reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall be
entitled to vote in each election of the Operating Adviser. The voting in each
election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Trustee on or prior to
the date of such election. Immediately upon receipt by the Trustee of votes
(which have not been rescinded) from the Holders of Certificates representing
more than 50% of the Certificate Balance of the Certificates of the then
Controlling Class which are cast for a single Person, such Person shall be, upon
such Person's acceptance, the Operating Adviser. The Trustee shall not be
required to recognize any Person as an Operating Adviser until the Operating
Adviser provides the Trustee with written confirmation of its acceptance of such
appointment, written confirmation that it will keep confidential all information
received by it as Operating Adviser hereunder or otherwise with respect to the
Certificates, the Trust and/or this Agreement, an address and telecopy number
for the delivery of notices and other correspondence and a list of officers or
employees of such Person with whom the parties to this Agreement may deal
(including their names, titles, work addresses and telecopy numbers). The
Trustee hereby recognizes LNR Securities Holdings, LLC as the initial Operating
Adviser. The Trustee shall promptly deliver to the Master Servicers and the
Special Servicers the notice of an identity of any successor Operating Advisor
that the Trustee has been notified of in accordance with this Agreement. The
Master Servicers and the Special Servicers shall not be required to recognize
any Person as an Operating Adviser until such information has been delivered by
the Trustee. In the event that an Operating Adviser shall have resigned or been
removed and a successor Operating Adviser shall not have been elected, there
shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Trustee, of more than 50% of the
Certificate Balance of the Holders of the Certificates of the then Controlling
Class.
(e) The Trustee shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Trustee
shall be conclusive. Notwithstanding any other provisions of this Section 9.37,
the Trustee may make such reasonable regulations as it may deem advisable for
any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that a Special Servicer
has been elected as Operating Adviser or no Operating Adviser has been elected,
(i) such Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than a Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
applicable Special Servicer.
Section 9.38 Limitation on Liability of Operating Adviser
The Operating Adviser shall have no liability to the Trust, the
Depositor, the Master Servicers, the Special Servicers, the Trustee, the Paying
Agent or the Certificateholders for any action taken, or for refraining from the
taking of any action, in good faith and using reasonable business judgment
pursuant to this Agreement. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates, and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict. Furthermore,
the Operating Adviser shall have no rights with respect to the
Non-Trust-Serviced Pari Passu Loan or the Non-Trust Serviced Companion Loan. The
Operating Adviser shall have no liability to the trust formed pursuant to the
2007-HQ11 Pooling and Servicing Agreement, the holder of the Non-Trust Serviced
Companion Loan or the certificateholders under the 2007-HQ11 Pooling and
Servicing Agreement for any action taken, or for refraining from the taking of
any action, in good faith and using reasonable business judgment pursuant to
this Agreement.
Section 9.39 Rights of Operating Adviser
(a) Notwithstanding anything to the contrary herein, including but not
limited to Article 8 hereof, the Operating Adviser may advise the applicable
Special Servicer with respect to the following actions of such Special Servicer
and such Special Servicer will not be permitted to take any of the following
actions with respect to any Mortgage Loan (other than the Non-Trust Serviced
Pari Passu Loan) unless and until it has notified the Operating Adviser in
writing and such Operating Adviser has not objected in writing (i) within 5
Business Days of having been notified thereof in respect of actions relating to
non-Specially Serviced Mortgage Loans (which 5 Business Day period shall run
concurrently with the time periods set forth in the Primary Servicing Agreement
with respect to such actions) and (ii) within 10 Business Days of having been
notified thereof in respect of actions relating to Specially Serviced Mortgage
Loans and having been provided with all reasonably requested information with
respect thereto (it being understood and agreed that if such written objection
has not been received by the applicable Special Servicer within such 5 Business
Day or 10 Business Day period, as applicable, then the Operating Adviser's
approval will be deemed to have been given):
(i) any modification, amendment or waiver, or consent to modification,
amendment or waiver, of a Money Term of a Mortgage Loan other than an
extension of the original maturity date for 2 years or less;
(ii) with respect to notice only, any proposed sale of a Defaulted
Mortgage Loan, pursuant to Section 9.36;
(iii) any determination to bring an REO Property into compliance with
Environmental Laws;
(iv) any acceptance of substitute or additional collateral for a
Mortgage Loan not expressly required under such Mortgage Loan (except with
respect to a Defeasance Loan);
(v) any acceptance of a discounted payoff;
(vi) any waiver or consent to waiver of a "due-on-sale" or
"due-on-encumbrance" clause (other than with respect to a Co-op Mortgage
Loan as to which the NCB, FSB Subordinate Debt Conditions have been
satisfied);
(vii) any acceptance of an assumption agreement;
(viii) any release of collateral for a Specially Serviced Mortgage Loan
(other than in accordance with the terms of or upon satisfaction of such
Mortgage Loan); and
(ix) subject to Section 14.2 below, any franchise changes or certain
management company changes for which the Special Servicer is required to
consent.
(b) In addition, notwithstanding anything to the contrary herein,
including but not limited to Article 8 hereof, the Operating Adviser shall have
the right to approve any of the following actions by the Special Servicer:
(i) any actual or proposed foreclosure upon or comparable conversion
(which may include acquisition of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any acceptance of a discounted payoff; and
(iii) any release of "earn out" or performance reserves listed on
Schedule XI hereof, on deposit in an Escrow Account, other than where such
release does not require the consent of the lender.
In the event that the applicable Special Servicer determines that
immediate action is necessary to protect the interests of the
Certificateholders, the applicable Special Servicer may take any such action
without waiting for the Operating Adviser's advice or approval. No advice or
approval or lack of approval of the Operating Adviser may (and each Special
Servicer shall ignore and act without regard to any such advice or approval or
lack of approval that such Special Servicer has determined, in its reasonable,
good faith judgment, would) (A) require or cause such Special Servicer to
violate applicable law, the terms of any Mortgage Loan or any other Section of
this Agreement, including such Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in Adverse REMIC Event with
respect to any REMIC Pool, (C) endanger the status of the Class EI Grantor Trust
as a grantor trust, (D) expose the Trust, the Depositor, a Master Servicer, a
Special Servicer, the Trustee or any of their respective Affiliates, members,
managers, partners, representatives, officers, directors, employees or agents,
to any material claim, suit or liability, or (E) expand the scope of a Master
Servicer's or Special Servicer's responsibilities under this Agreement.
Any notices required to be delivered to the applicable Special Servicer
with respect to items (i) through (ix) of subsection (a) above and items (i)
through (iii) of subsection (b) above by any other party to this Agreement shall
be simultaneously delivered to the Operating Adviser (including, to the extent
received from a party to the 2007-HQ11 Pooling and Servicing Agreement, such
information with respect to the Non-Trust Serviced Pari Passu Loan). With
respect to items (vi), (vii) and (viii) of subsection (a) above, the Operating
Adviser shall be subject to the same time periods for advising the applicable
Special Servicer with respect to any such matters as are afforded to such
Special Servicer pursuant to Section 14.1, which periods shall be co-terminus
with those of such Special Servicer. The applicable Special Servicer shall
provide the Operating Adviser with its recommendations with respect to the
matters set forth in both (a) and (b) above within 5 Business Days of such
Special Servicer's receipt of notice thereof. In addition, the Operating Adviser
may direct the Trustee to remove the applicable Special Servicer at any time
upon the appointment and acceptance of such appointment by a successor to the
applicable Special Servicer; provided that, prior to the effectiveness of any
such appointment, the Trustee shall have received Rating Agency Confirmation
from each Rating Agency. The Operating Adviser shall pay any costs and expenses
incurred by the Trust in connection with the removal and appointment of an
applicable Special Servicer (unless such removal is based on any of the events
or circumstances set forth in Section 9.30(b)). Notwithstanding any other
provision in this Agreement, the Operating Adviser shall have the right to
appoint a sub-operating adviser with respect to any particular Mortgage Loan
(other than the Non-Trust Serviced Pari Passu Loan). Such sub-operating adviser
shall have the right, subject to Rating Agency Confirmation, to appoint, or
serve as, the Special Servicer with respect to such Mortgage Loan. All
references in this Agreement to the "Operating Adviser" and the "Special
Servicer" shall refer to the sub-operating adviser or the special servicer
appointed by the sub-operating adviser, as applicable; provided, however, that
such Special Servicer shall not have any advancing obligations with respect to
such Mortgage Loans.
Any right to take any action, grant or withhold any consent or
otherwise exercise any right, election or remedy afforded the Operating Adviser
under this Agreement may, unless otherwise expressly provided herein to the
contrary, be affirmatively waived by the Operating Adviser by written notice
given to the Trustee or Master Servicer, as applicable. Upon delivery of any
such notice of waiver given by the Operating Adviser, any time period (exclusive
or otherwise) afforded the Operating Adviser to exercise any such right, make
any such election or grant or withhold any such consent shall thereupon be
deemed to have expired with the same force and effect as if the specific time
period set forth in this Agreement applicable thereto had itself expired.
Section 9.40 Litigation Control
The General Special Servicer shall, (1) direct, manage, prosecute
and/or defend any action brought by a Mortgagor (other than a Mortgagor with
respect to a Co-op Mortgage Loan) against the Trust and/or the General Special
Servicer and (2) represent the interests of the Trust in any litigation relating
to the rights and obligations of such Mortgagor or the Trust, or the enforcement
of the obligations of such Mortgagor, under the related Mortgage Loan documents
("General Trust-Related Litigation"). The Co-op Special Servicer shall, (1)
direct, manage, prosecute and/or defend any action brought by a Mortgagor with
respect to the Co-op Mortgage Loans against the Trust and/or the Co-op Special
Servicer and (2) represent the interests of the Trust in any litigation relating
to the rights and obligations of such Mortgagor or the Trust, or the enforcement
of the obligations of such Mortgagor under the related Mortgage Loan documents
("Co-op Trust-Related Litigation" and, collectively with General Trust-Related
Litigation, "Trust-Related Litigation").
To the extent either Master Servicer is named in Trust-Related
Litigation, and neither the Trust nor the applicable Special Servicer is named,
in order to effectuate the role of the applicable Special Servicer as
contemplated by the immediately preceding paragraph, the applicable Master
Servicer shall (1) notify the General Special Servicer (with respect to General
Trust-Related Litigation) or the Co-op Special Servicer (with respect to Co-op
Trust-Related Litigation) of such Trust-Related Litigation within ten (10) days
of such Master Servicer receiving service of such Trust-Related Litigation; (2)
provide monthly status reports to the applicable Special Servicer regarding such
Trust-Related Litigation; (3) seek to have the Trust replace the applicable
Master Servicer as the appropriate party to the lawsuit; and (4) so long as the
applicable Master Servicer remains a party to the lawsuit, consult with and act
at the direction of the applicable Special Servicer with respect to decisions
and resolutions related to the interests of the Trust in such Trust-Related
Litigation, including but not limited to the selection of counsel, provided,
however, if there are claims against the applicable Master Servicer and such
Master Servicer has not determined that separate counsel is required for such
claims, such counsel shall be reasonably acceptable to the applicable Master
Servicer.
Notwithstanding the rights of the Special Servicers otherwise set forth
above and below, (i) the Special Servicer shall provide the applicable Master
Servicer with copies of any notices, process and/or pleadings submitted and/or
filed in any such action, suit, litigation or proceeding; (ii) the applicable
Master Servicer may retain its own counsel, whose reasonable costs shall be paid
by the Trust under Section 8.24, and appear in any action, suit, litigation or
proceeding on its own behalf in order to represent, protect and defend its
interests; and (iii) the applicable Master Servicer shall have the right to
approve or disapprove of any judgment, settlement, final order or decree that
may impose liability on the applicable Master Servicer or otherwise materially
and adversely affect the applicable Master Servicer, including, but not limited
to, damage to the applicable Master Servicer's reputation as a master servicer.
Further, nothing in this section shall require a Master Servicer to
take or fail to take any action which, in such Master Servicer's good faith and
reasonable judgment, may (1) result in an Adverse REMIC Event or Adverse Grantor
Trust Event or (2) subject such Master Servicer to liability or materially
expand the scope of such Master Servicer's obligations under this Agreement.
Subject to the rights of the Master Servicer set forth above and below,
the General Special Servicer and the Co-op Special Servicer shall have the right
at any time to (1) direct the General Master Servicer and the NCB Master
Servicer, respectively, to settle any Trust-Related Litigation brought against
the Trust, including Trust-Related Litigation asserted against the General
Master Servicer or the NCB Master Servicer, respectively (whether or not the
Trust or the applicable Special Servicer is named in any such Trust-Related
Litigation) and (2) otherwise reasonably direct the actions of the General
Master Servicer and the NCB Master Servicer, respectively, relating to
Trust-Related Litigation against such Master Servicer (whether or not the Trust
or the applicable Special Servicer is named in any such claims or Trust-Related
Litigation), provided in either case that (A) such settlement or other direction
does not require any admission of liability or wrongdoing on the part of such
Master Servicer or otherwise materially and adversely affect the applicable
Master Servicer, including, but not limited to, damage to the applicable Master
Servicer's reputation as a master servicer, (B) the cost of such settlement or
any resulting judgment is and shall be paid by the Trust, (C) such Master
Servicer is and shall be indemnified pursuant to Section 8.24 hereof for all
costs and expenses of such Master Servicer incurred in defending and settling
the Trust-Related Litigation and for any judgment, (D) any such action taken by
such Master Servicer at the direction of the applicable Special Servicer be
deemed (as to such Master Servicer) to be in compliance with the Servicing
Standard and (E) such Special Servicer provides the applicable Master Servicer
with assurance reasonably satisfactory to such Master Servicer as to the items
in clauses (A), (B) and (C).
In the event more than one of the Master Servicers and the Special
Servicers or Trust are named in litigation, the applicable Master Servicers and
the applicable Special Servicers shall cooperate with each other to afford the
applicable Master Servicers and the applicable Special Servicer the rights
afforded to such party in this Section 9.40.
This Section 9.40 shall not apply in the event the General Special
Servicer authorizes the General Master Servicer, or the Co-op Special Servicer
authorizes the NCB Master Servicer, and the applicable Master Servicer agrees
(both authority and agreement to be in writing), to make certain decisions or
control certain Trust-Related Litigation on behalf of the Trust.
Notwithstanding the foregoing, (a) in the event that any action, suit,
litigation or proceeding names the Trustee, the Paying Agent and/or the
Certificate Registrar in its individual capacity, or in the event that any
judgment is rendered against the Trustee, the Paying Agent and/or the
Certificate Registrar in its individual capacity, the Trustee, the Paying Agent
and/or the Certificate Registrar, upon prior written notice to all applicable
Master Servicers or Special Servicers, may retain counsel and appear in any such
proceeding on its own behalf in order to protect and represent its interests
(provided that the applicable Master Servicer or applicable Special Servicer
shall retain the right to manage and direct any such action, suit, litigation or
proceeding); (b) in the event of any action, suit, litigation or proceeding,
other than an action, suit, litigation or proceeding relating to the enforcement
of the obligations of a Mortgagor, guarantor or other obligor under the related
Mortgage Loan documents, or otherwise relating to one or more Mortgage Loans or
Mortgaged Properties, neither the General Master Servicer (with respect to the
Mortgage Loans other than the NCB, FSB Loans) nor the General Special Servicer
(with respect to the Mortgage Loans other than the Co-op Mortgage Loans) and
neither the NCB Master Servicer (with respect to the NCB, FSB Loans) nor the
Co-op Special Servicer (with respect to the Co-op Mortgage Loans) shall, without
the prior written consent of the Trustee, the Paying Agent and/or the
Certificate Registrar, (i) initiate an action, suit, litigation or proceeding in
the name of the Trustee, the Paying Agent and/or the Certificate Registrar,
whether in such capacity or individually, (ii) engage counsel to represent the
Trustee, the Paying Agent and/or the Certificate Registrar, or (iii) prepare,
execute or deliver any government filings, forms, permits, registrations or
other documents or take any other similar action with the intent to cause, and
that actually causes, the Trustee, the Paying Agent and/or the Certificate
Registrar to be registered to do business in any state; and (c) in the event
that any court finds that the Trustee, the Paying Agent and/or the Certificate
Registrar is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement or any Mortgage Loan, the
Trustee, the Paying Agent and/or the Certificate Registrar shall have the right
to retain counsel and appear in any such proceeding on its own behalf in order
to protect and represent its interests, whether as Trustee, the Paying Agent
and/or the Certificate Registrar or individually (provided that the applicable
Master Servicer or the applicable Special Servicer shall retain the right to
manage and direct any such action, suit, litigation or proceeding).
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All
Mortgage Loans
(a) The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee, to make payments to the Class R-I
Certificateholders, the Class R-II Certificateholders and the REMIC III
Certificateholders, as set forth in Section 10.2 and other than the obligations
in the nature of information or tax reporting) shall terminate on the earliest
of (i) the later of (A) the final payment or other liquidation of the last
Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (including for
all purposes of this Article X, the beneficial interest of the Trust in a
Mortgaged Property acquired with respect to the Non-Trust Serviced Pari Passu
Loan) (and final distribution to the Certificateholders), (ii) the sale of the
property held by the Trust in accordance with Section 10.1(b), (iii) the
termination of the Trust pursuant to Section 10.1(c) or (iv) the transfer of the
property held in the Trust in accordance with Section 10.1(d); provided that 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. Xxxxx,
living on the date hereof.
(b) The General Master Servicer shall give the Trustee notice of the
date when the aggregate Principal Balance of the Mortgage Loans, after giving
effect to distributions of principal made on the next Distribution Date, is less
than or equal to 1% of the initial Aggregate Certificate Balance of the
Certificates as of the Closing Date. In order to make such determination, the
NCB Master Servicer shall inform the General Master Servicer (which may be
through providing the General Master Servicer access to the NCB Master
Servicer's website) of the Principal Balance of the Co-op Mortgage Loans on a
monthly basis, or at an accelerated interval as requested by the General Master
Servicer of the NCB Master Servicer. The Trustee shall promptly forward such
notice to the Trustee, the Depositor, the Holder of a majority of the
Controlling Class, the Master Servicers, the Special Servicers NCB, FSB (if it
is not then a Master Servicer) and the Holders of the Class R-I Certificates;
and the General Special Servicer, the Holder of a majority of the Controlling
Class, the General Master Servicer, the NCB Master Servicer, the Co-op Special
Servicer and the Holders of the Class R-I Certificates, in such priority (and in
the case of the Class R-I Certificateholders, a majority of the Class R-I
Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust, provided, that if any Holder of
a majority of the Controlling Class, the Co-op Special Servicer, the General
Master Servicer, the NCB Master Servicer (if not then NCB, FSB), the General
Special Servicer or the Holders of the Class R-I Certificates makes such an
election, then NCB, FSB will have the option, by giving written notice to the
other parties hereto no later than 30 days prior to the anticipated date of
purchase, to purchase all of the NCB, FSB Loans and each related REO Property
remaining in the Trust, and the other party will then have the option to
purchase only the remaining Mortgage Loans and each related REO Property. If any
party desires to exercise such option, it will notify the Trustee who will
notify any party with a prior right to exercise such option and NCB, FSB (if it
is not then a Master Servicer). If any party that has been provided notice by
the Trustee (excluding the Depositor) notifies the Trustee within ten Business
Days after receiving notice of the proposed purchase that it wishes to purchase
the assets of the Trust, then such party (or, in the event that more than one of
such parties notifies the Trustee that it wishes to purchase the assets of the
Trust, the party with the first right to purchase the assets of the Trust) may
purchase the assets of the Trust in accordance with this Agreement. Upon the
Trustee's receipt of the Termination Price set forth below, the Trustee shall
promptly release or cause to be released to the applicable Master Servicer for
the benefit of the Holder of the majority of the Class R-I Certificates, the
applicable Special Servicer or the applicable Master Servicer, as the case may
be, the Mortgage Files pertaining to the Mortgage Loans. The "Termination Price"
shall equal 100% of the aggregate Principal Balances of the Mortgage Loans
(other than Mortgage Loans as to which a Final Recovery Determination has been
made) on the day of such purchase plus accrued and unpaid interest thereon
(other than any accrued and unpaid interest thereon that has been the subject of
an Advance) at the applicable Mortgage Rates (or Mortgage Rates less the Master
Servicing Fee Rate if a Master Servicer is the purchaser), with respect to the
Mortgage Loans to the Due Date for each Mortgage Loan ending in the Collection
Period with respect to which such purchase occurs, plus unreimbursed Advances
and interest on such unreimbursed Advances at the Advance Rate, and the fair
market value of any other property remaining in REMIC I. The Trustee shall
consult with the Placement Agent and the Underwriters or their respective
successors, as advisers, in order for the Trustee to determine whether the fair
market value of the property constituting the Trust has been offered; provided
that, if the Placement Agent or any Underwriter or an Affiliate of the Placement
Agent or the Underwriters is exercising its right to purchase the Trust assets,
the Trustee shall consult with the Operating Adviser in order for the Trustee to
determine the fair market value, provided that the Operating Adviser is not an
Affiliate of the Class R-I Holder, a Special Servicer or a Master Servicer, or
the Trustee (the fees and expenses of which shall be paid for by buyer of the
property). As a condition to the purchase of the Trust pursuant to this Section
10.1(b), the Holder of the majority of the Class R-I Certificates, the Special
Servicers or the Master Servicers, as the case may be, must deliver to the
Trustee an Opinion of Counsel, which shall be at the expense of such Holders,
the Special Servicers or the Master Servicers, as the case may be, stating that
such termination will be a "qualified liquidation" under Section 860F(a)(4) of
the Code. Such purchase shall be made in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates own 100%
of the REMIC III Certificates and the Class EI Certificates, such Holders may
terminate REMIC I (which will in turn result in the termination of REMIC II and
REMIC III), and the Class EI Grantor Trust upon (i) the delivery to the Trustee
and the Depositor of an Opinion of Counsel (which opinion shall be at the
expense of such Holders) stating that such termination will be a "qualified
liquidation" of each REMIC Pool under Section 860F of the Code, and (ii) the
payment of any and all costs associated with such termination. Such termination
shall be made in accordance with Section 10.3.
(d) Following the date on which the aggregate Certificate Balance of
the Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates is reduced to zero, the Sole Certificateholder shall have the right
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property remaining in the Trust as
contemplated by clause (iv) of Section 10.1(a) by giving written notice to all
the parties hereto no later than 60 days prior to the anticipated date of
exchange and upon the delivery to the Trustee and the Depositor of an Opinion of
Counsel (which opinion shall be at the expense of such Sole Certificateholders)
stating that such exchange will be a "qualified liquidation" of each REMIC Pool
under Section 860F of the Code. In the event that the Sole Certificateholder
elects to exchange all of its Certificates (other than the Residual
Certificates) for all of the Mortgage Loans and 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
Account an amount in immediately available funds equal to all amounts due and
owing to the Depositor, the General Master Servicer, the NCB Master Servicer,
the General Special Servicer, the Co-op Special Servicer and the Trustee
hereunder through the date of the liquidation of the Trust that may be withdrawn
from the Certificate Account, or an escrow account acceptable to the respective
parties hereto or that may be withdrawn from the Distribution Accounts pursuant
to this Agreement but only to the extent that such amounts are not already on
deposit in the Certificate Account. Upon confirmation that such final deposits
have been made and following the surrender of all its Certificates (other than
the Residual Certificates) on such Distribution Date, the Trustee shall, upon
receipt of a Request for Release from the General Master Servicer and the NCB
Master Servicer, if applicable, 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, and the Trust shall be liquidated in accordance with Section 10.2. For
federal income tax purposes, the Sole Certificateholder shall be deemed to have
purchased the assets of REMIC I, the Class EI Grantor Trust, to the extent then
outstanding, for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Residual Certificates), plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributed in respect of such Certificates. The remaining Mortgage
Loans and REO Properties are deemed distributed to the Sole Certificateholder in
liquidation of the Trust pursuant to Section 10.2.
(e) Upon the termination of the Trust, any Excess Interest held by the
Class EI Grantor Trust shall be distributed to the Class EI Certificateholders,
on a pro rata basis.
Section 10.2 Procedure Upon Termination of Trust
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to the
Rating Agencies, the Class R-I, Class R-II, REMIC Regular and Class EI
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-I, Class R-II, REMIC Regular and Class EI
Certificates will be made, and upon presentation and surrender of the Class R-I,
Class R-II, REMIC Regular and Class EI Certificates at the office or agency of
the Certificate Registrar therein specified, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Class R-I, Class R-II,
REMIC Regular and Class EI Certificates at the office or agency of the
Certificate Registrar therein specified. The Trustee shall give such notice to
the Depositor and the Certificate Registrar at the time such notice is given to
Holders of the Class R-I, Class R-II, REMIC Regular and Class EI Certificates.
Upon any such termination, the duties of the Certificate Registrar with respect
to the Class R-I, Class R-II, REMIC Regular and Class EI Certificates shall
terminate and the Trustee shall terminate, or request the Master Servicers to
terminate, the Certificate Accounts and the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Trustee's obligation hereunder to hold all amounts payable to the Class R-I,
Class R-II, REMIC Regular and Class EI Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class R-I, Class R-II, REMIC Regular and Class EI
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Class R-I, Class R-II, REMIC Regular and
Class EI Certificateholders to surrender their certificates evidencing the Class
R-I, Class R-II, REMIC Regular and Class EI Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice any Class R-I, Class R-II, REMIC Regular and Class EI
Certificates shall not have been surrendered for cancellation, the Certificate
Registrar may take appropriate steps to contact the remaining Class R-I, Class
R-II, REMIC Regular and Class EI Certificateholders concerning surrender of such
certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Class R-I, Class R-II, REMIC Regular and Class EI Certificates shall not
have been surrendered for cancellation, the Trustee shall, subject to applicable
state law relating to escheatment, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Class R-I, Class R-II, REMIC
Regular or Class EI Certificateholder due to such Certificateholder's failure to
surrender its Certificate(s) for payment of the final distribution thereon in
accordance with this Section. Any money held by the Trustee pending distribution
under this Section 10.2 after 90 days after the adoption of a plan of complete
liquidation shall be deemed for tax purposes to have been distributed from the
REMIC Pools and the Class EI Grantor Trust and shall be beneficially owned by
the related Holder.
Section 10.3 Additional REMIC Termination Requirements
(a) The Trust and each REMIC Pool shall be terminated in accordance
with the following additional requirements, unless at the request of a Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Trustee subsequently receives an Opinion of Counsel (at the
expense of such Master Servicer or the Class R-I Certificateholders, as the case
may be), addressed to the Depositor and the Trustee to the effect that the
failure of the Trust to comply with the requirements of this Section 10.3 will
not (i) result in the imposition of taxes on "prohibited transactions" on any
REMIC Pool under the REMIC Provisions or (ii) cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final payment
on the Class R-I, Class R-II and REMIC III Regular Interests, the Trustee
shall prepare and (on behalf of REMIC I, REMIC II and REMIC III) shall adopt
a plan of complete liquidation of each REMIC Pool, meeting the requirements
of a qualified liquidation under the REMIC Provisions, which plan need not
be in any special form and the date of which, in general, shall be the date
of the notice specified in Section 10.2(a) and shall be specified in a
statement attached to the final federal income tax return of each REMIC
Pool;
(ii) At or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on
the Class R-I, Class R-II, REMIC III Regular Interests, the Trustee shall
sell all of the assets of each REMIC Pool for cash at the Termination Price;
provided that if the Holders of the Class R-I Certificates are purchasing
the assets of the Trust, the amount to be paid by such Holders may be paid
net of the amount to be paid to such Holders as final distributions on any
Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class R-I Certificates
all assets of REMIC I remaining after such final payment of the REMIC I
Regular Interests, (B) to the Holders of the Class R-II Certificates all
remaining assets of REMIC II after such final payment of the REMIC II
Regular Interests and (C) to the Holders of the Class R-III Certificates all
remaining assets of REMIC III (in each case other than cash retained to meet
claims), and the Trust shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests or REMIC Regular Certificates or the
final distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan of
complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the Trustee
to take such action as may be necessary to adopt a plan of complete liquidation
of each REMIC Pool and (ii) agree to take such other action as may be necessary
to adopt a plan of complete liquidation of the Trust upon the written request of
the Depositor, which authorization shall be binding upon all successor Class
R-I, Class R-II and Class R-III Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
The provisions of this Article XI shall apply to each of the REMIC
Regular Certificateholders and Residual Certificateholders to the extent
appropriate.
Section 11.1 Limitation on Rights of Holders
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicers
or operation and management of the Trust, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) If a Certificateholder is also a Mortgagor with respect to any
Mortgage Loan, such Certificateholder shall have no right to vote with respect
to any matters concerning such Mortgage Loan. In addition, if a
Certificateholder is also one of the Special Servicers, such Certificateholder
shall have no right to vote, in its capacity as a Certificateholder, with
respect to compensation to such Special Servicer or any waiver of a default with
respect to a Mortgage Loan.
(d) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding 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 cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty 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 and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision 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, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.2 Access to List of Holders
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within 15 days after receipt by the Certificate Registrar of a request by the
Trustee in writing, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Certificateholders of each Class as of the
most recent Record Date.
(b) If the Depositor, the Operating Adviser, a Special Servicer, a
Master Servicer, the Trustee or three or more Holders (hereinafter referred to
as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Master Servicers, the Special
Servicers and the Trustee that neither the Depositor, the Certificate Registrar,
the Master Servicers, the Special Servicers nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 11.3 Acts of Holders of Certificates
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Depositor, if made in
the manner provided in this Section. The Trustee agrees to promptly notify the
Depositor of any such instrument or instruments received by it, and to promptly
forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee or
the Depositor in reliance thereon, whether or not notation of such action is
made upon such Certificate.
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool and
the Class EI Grantor Trust, as applicable.
Section 12.1 REMIC Administration
(a) An election will be made by the Trustee to treat the segregated
pool of assets consisting of the Mortgage Loans (other than Excess Interest
payable thereon), such amounts with respect thereto as shall from time to time
be held in the Certificate Accounts, the Interest Reserve Account, the
Distribution Account and the Reserve Account, the Insurance Policies and any
related amounts REO Account and any related REO Properties as a REMIC ("REMIC
I") under the Code. Such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the REMIC I
Interests are issued. For purposes of such election, the REMIC I Regular
Interests shall each be designated as a separate class of "regular interests" in
REMIC I and the Class R-I Certificates shall be designated as the sole class of
"residual interests" in REMIC I.
An election will be made by the Trustee to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC ("REMIC II") under
the Code. Such election will be made on Form 1066 or other appropriate federal
tax or information return or any appropriate state return for the taxable year
ending on the last day of the calendar year in which the REMIC II Interests are
issued. For the purposes of such election, the REMIC II Regular Interests shall
be designated as the "regular interests" in REMIC II and the Class R-II
Certificates shall be designated as the sole class of the "residual interests"
in REMIC II.
An election will be made by the Trustee to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC III")
under the Code. Such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the REMIC III
Certificates are issued. For purposes of such election, the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4, 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 O, Class P, Class X and Class X-Y Certificates shall
be designated as the "regular interests" in REMIC III and the Class R-III
Certificates shall be designated as the sole class of "residual interests" in
REMIC III.
The Trustee shall not permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in any of the REMIC Pools other than
the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC Regular
Certificates and the Residual Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Trustee shall cause to be prepared, signed, and timely filed
with the Internal Revenue Service, on behalf of each REMIC Pool and the Class EI
Grantor Trust an application for a taxpayer identification number for such REMIC
Pool or grantor trust on Internal Revenue Service Form SS-4. The Trustee, upon
receipt from the Internal Revenue Service of the Notice of Taxpayer
Identification Number Assigned, shall promptly forward a copy of such notice to
the Depositor and the Master Servicers. The Trustee shall prepare and file Form
8811 on behalf of each REMIC Pool and shall designate an appropriate Person to
respond to inquiries by or on behalf of Certificateholders for original issue
discount and related information in accordance with applicable provisions of the
Code.
(e) The Trustee shall prepare and file, or cause to be prepared and
filed, all of each REMIC Pool's federal and state income or franchise tax and
information returns as such REMIC Pool's direct representative, and the Trustee
shall sign such returns; the expenses of preparing and filing such returns shall
be borne by the Trustee, except that if additional state tax returns are
required to be filed in more than three states, the Trustee shall be entitled,
with respect to any such additional filings, to (i) be paid a reasonable fee and
(ii) receive its reasonable costs and expenses, both as amounts reimbursable
pursuant to Section 5.2(a)(vi) hereof. The Depositor, the Master Servicers and
the Special Servicers shall provide on a timely basis to the Trustee or its
designee such information with respect to the Trust or any REMIC Pool as is in
its possession, which the Depositor or a Master Servicer and the Special
Servicer has received or prepared by virtue of its role as Depositor or Master
Servicer and Special Servicer hereunder and reasonably requested by the Trustee
to enable it to perform its obligations under this subsection, and the Trustee
shall be entitled to conclusively rely on such information in the performance of
its obligations hereunder. The Depositor shall indemnify the Trust, the Trustee
or any liability or assessment against any of them or cost or expense (including
attorneys' fees) incurred by them resulting from any error resulting from bad
faith, negligence, or willful malfeasance of the Depositor in providing any
information for which the Depositor is responsible for preparing. Each Master
Servicer and each Special Servicer shall indemnify the Trustee and the Depositor
for any liability or assessment against the Trustee, the Depositor or any REMIC
Pool and any expenses incurred in connection with such liability or assessment
(including attorneys' fees) resulting from any error in any of such tax or
information returns resulting from errors in the information provided by such
Master Servicer or such Special Servicer, as the case may be, which errors were
caused by the negligence, willful misconduct or bad faith of such Master
Servicer or the Special Servicer, as the case may be. The Trustee shall
indemnify the Master Servicers, such Special Servicer, the Depositor or any
REMIC Pool for any expense incurred by any Master Servicer, any Special
Servicers, the Depositor and any REMIC Pool resulting from any error in any of
such tax or information returns resulting from errors in the preparation of such
returns caused by the negligence, willful misconduct or bad faith of the
Trustee. Each indemnified party shall immediately notify the indemnifying party
or parties of the existence of a claim for indemnification under this Section
12.1(e), and provide the indemnifying party or parties, at the expense of such
indemnifying party or parties, an opportunity to contest the tax or assessment
or expense giving rise to such claim, provided that the failure to give such
notification rights shall not affect the indemnification rights in favor of any
REMIC Pool under this Section 12.1(e). Any such indemnification shall survive
the resignation or termination of a Master Servicer, the Trustee or a Special
Servicer, or the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Trustee shall provide (i) to the Internal Revenue Service
or other Persons (including, but not limited to, the Transferor of a Residual
Certificate, to a Disqualified Organization or to an agent that has acquired a
Residual Certificate on behalf of a Disqualified Organization) such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of quarterly and
annual REMIC tax returns and Internal Revenue Service Form 1099 information
returns and such other information within the control of the Trustee as the
Depositor may reasonably request in writing. Moreover, the Trustee shall forward
to each Certificateholder such forms and furnish such information within its
control as are required by the Code to be furnished to them, shall prepare and
file with the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Internal Revenue Service Forms
1099 (or otherwise furnish information within the control of the Trustee) to the
extent required by applicable law. The Trustee will make available to any
Certificateholder any tax related information required to be made available to
Certificateholders pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the applicable REMIC Pool's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC Pools
are hereby delegated to the Trustee and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the
Trustee as their agent and attorney in fact. If the Code or applicable
regulations prohibits the Trustee from signing any applicable Internal Revenue
Service, court or other administrative documents or from acting as Tax Matters
Person (as an agent or otherwise), the Trustee shall take whatever action is
necessary for the signing of such documents and designation of a Tax Matters
Person, including the designation of such Residual Certificateholder. The
Trustee shall not be required to expend or risk its own funds or otherwise incur
any other financial liability in the performance of its duties hereunder or in
the exercise of any of its rights or powers (except to the extent of the
ordinary expenses of performing its duties under this Agreement), 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.
(i) The Trustee, the Holders of the Residual Certificates, the Master
Servicers and the Special Servicers shall each exercise reasonable care, to the
extent within its control, and with respect to each of the Trustee, the Master
Servicers and the Special Servicers, within the scope of its express duties, and
shall each act in accordance with this Agreement and the REMIC Provisions in
order to create and maintain the status of each REMIC Pool as a REMIC and the
Class EI Grantor Trust as a grantor trust or, as appropriate, adopt a plan of
complete liquidation with respect to each REMIC Pool.
(j) The Trustee, the Master Servicers, the Special Servicers, and the
Holders of Residual Certificates shall not take any action or fail to take any
action or cause any REMIC Pool to take any action or fail to take any action if
any of such Persons knows or could, upon the exercise of reasonable diligence,
know, that, under the REMIC Provisions such action or failure, as the case may
be, could (i) endanger the status of any REMIC Pool as a REMIC or (ii) result in
the imposition of a tax upon any REMIC Pool (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2)) of the Code or
(iii) endanger the status of the Class EI Grantor Trust as a grantor trust
unless the Trustee has received an Opinion of Counsel (at the expense of the
party seeking to take such action) to the effect that the contemplated action
will not endanger such status or result in the imposition of such a tax. Any
action required under this section which would result in an unusual or
unexpected expense shall be undertaken at the expense of the party seeking the
Trustee or the Holders of the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on the REMIC I, REMIC II or
REMIC III, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to the REMIC I, REMIC II or REMIC III after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of state or local tax laws (other than any tax
permitted to be incurred by the Special Servicers pursuant to Section 9.14(f)),
such tax, together with all incidental costs and expenses (including, without
limitation, penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the Trustee, if such tax arises out of or results from a breach of
any of its obligations under this Agreement, which breach constitutes
negligence, willful misconduct or bad faith; (ii) a Special Servicer, if such
tax arises out of or results from a breach by such Special Servicer of any of
its obligations under this Agreement, which breach constitutes negligence,
willful misconduct or bad faith; (iii) a Master Servicer, if such tax arises out
of or results from a breach by such Master Servicer of any of its obligations
under this Agreement, which breach constitutes negligence, willful misconduct or
bad faith; and (iv) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicers pursuant to Section 9.14(e) shall be charged
to and paid by the Trust from the net income generated on the related REO
Property. Any such amounts payable by the Trust in respect of taxes shall be
paid by the Trustee out of amounts on deposit in the Distribution Account.
(l) The Trustee and, to the extent that records are maintained by the
Master Servicers or the Special Servicers in the normal course of their
businesses, the Master Servicers and the Special Servicers shall, for federal
income tax purposes, maintain books and records with respect to each REMIC Pool
on a calendar year and on an accrual basis, and with respect to the Class EI
Grantor Trust on the cash or accrual method and so as to enable reporting to
Holders of the Class EI Certificates, respectively, based on their annual
accounting period. Notwithstanding anything to the contrary contained herein,
except to the extent provided otherwise in the Mortgage Loans or in the
Mortgages, all amounts collected on the Mortgage Loans shall, for federal income
tax purposes, be allocated first to interest due and payable on the Mortgage
Loans (including interest on overdue interest, other than additional interest at
a penalty rate payable following a default). The books and records must be
sufficient concerning the nature and amount of each REMIC Pool's investments to
show that such REMIC Pool has complied with the REMIC Provisions.
(m) Neither the Trustee, the Master Servicers nor the Special Servicers
shall enter into any arrangement by which any REMIC Pool will receive a fee or
other compensation for services.
(n) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten days after the Closing Date all information or data that the Trustee
reasonably determines to be relevant for tax purposes on the valuations and
offering prices of the Certificates, including, without limitation, the yield,
prepayment assumption, issue prices and projected cash flows of the
Certificates, as applicable, and the projected cash flows of the Mortgage Loans.
Thereafter, the Depositor shall provide to the Trustee or its designee, promptly
upon request therefor, any such additional information or data within the
Depositor's possession or knowledge that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Trustee is hereby directed to use any and all such information
or data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
to Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee and each REMIC Pool for any losses, liabilities, damages, claims,
expenses (including attorneys' fees) or assessments against the Trustee and each
REMIC Pool arising from any errors or miscalculations of the Trustee pursuant to
this Section that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Trustee (but not
resulting from the methodology employed by the Trustee) on a timely basis and
such indemnification shall survive the termination of this Agreement and the
termination or resignation of the Trustee.
The Trustee agrees that all such information or data so obtained by it
are to be regarded as confidential information and agrees that it shall use its
reasonable best efforts to retain in confidence, and shall ensure that its
officers, employees and representatives retain in confidence, and shall not
disclose, without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Trustee and its parent, or (ii) in connection with
its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, each Master Servicer
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
REMIC Pool 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.
(p) For the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each Class of REMIC
I Regular Interests, each Class of REMIC II Regular Interests and each Class of
REMIC Regular Certificates is the Final Rated Distribution Date.
Section 12.2 Prohibited Transactions and Activities
Neither the Trustee, the Master Servicers nor the Special Servicers
shall permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate Accounts or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the regular interests therein, (B)
affect the distribution of interest or principal on the Certificates, (C) result
in the encumbrance of the assets transferred or assigned to any REMIC Pool
(except pursuant to the provisions of this Agreement) or (D) cause any REMIC
Pool to be subject to a tax on "prohibited transactions" or "prohibited
contributions" or other tax pursuant to the REMIC Provisions.
Section 12.3 Modifications of Mortgage Loans
Notwithstanding anything to the contrary in this Agreement, neither the
Trustee, the applicable Master Servicer nor the applicable Special Servicer
shall permit any modification of a Money Term of a Mortgage Loan that is not in
default or as to which default is not reasonably foreseeable unless (i) the
Trustee, the applicable Special Servicer and the applicable Master Servicer have
received a Nondisqualification Opinion or a ruling from the Internal Revenue
Service (at the expense of the party making the request that the applicable
Master Servicer or the applicable Special Servicer modify the Mortgage Loan or a
Specially Serviced Mortgage Loan) to the effect that such modification would not
be treated as an exchange pursuant to Section 1001 of the Code (or, if it would
be so treated, would not be treated as a "significant modification" for purposes
of Treasury Regulations Section 1.860G-2(b) of the Code) or (ii) such
modification meets the requirements set forth in Section 14.2.
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status
In the event that any REMIC Pool fails to qualify as a REMIC, loses its
status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by the Trustee of its duties
and obligations set forth herein, the Trustee shall be liable to the REMIC Pools
and the Holders of the Residual Certificates for any and all losses, claims,
damages, liabilities or expenses ("Losses") resulting from such negligence and
relating to the Residual Certificates; provided, however, that the Trustee shall
not be liable for any such Losses attributable to the action or inaction of the
Master Servicers, the Special Servicers, the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicers, the Special Servicers, the
Depositor or such Holders of the Residual Certificates on which the Trustee has
relied. The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Holders of the Residual Certificates now or hereafter existing
at law or in equity. The Trustee shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
Section 12.5 Grantor Trust Administration
The assets of the Class EI Grantor Trust, consisting of the right to
any Excess Interest in respect of the ARD Loans and the related amounts in the
Excess Interest Sub-account, shall be held by the Trustee for the benefit of the
Holders of the Class EI Certificates, which Class EI Certificates will evidence
100% beneficial ownership of the related assets from and after the Closing Date.
It is intended that the portions of the Trust consisting of the Class EI Grantor
Trust will be treated as a grantor trust for federal income tax purposes, within
the meaning of subpart E, part I of subchapter J of the Code, and each of the
parties to this Agreement agrees that it will not take any action that is
inconsistent with establishing or maintaining such treatment. Under no
circumstances may the Trustee vary the assets of the Class EI Grantor Trust so
as to take advantage of variations in the market so as to improve the rate of
return of Holders of the Class EI Certificates. The Trustee shall be deemed to
hold and shall account for the Class EI Grantor Trust separate and apart from
the assets of the REMIC I, REMIC II and REMIC III created hereunder. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to the Class EI Certificateholders and shall file, or cause to be
filed with the Internal Revenue Service, together with Form 1041 or such other
form as may be applicable, information returns with respect to income relating
to their shares of the income and expenses of the Class EI Grantor Trust at the
time or times and in the manner required by the Code.
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness
Except with respect to Section 13.9, Section 13.10 and Section 13.11,
the parties hereto acknowledge and agree that the purpose of Article XIII of
this Agreement is to facilitate compliance by the Depositor with the provisions
of Regulation AB and related rules and regulations of the Commission. Neither
the Depositor nor the Trustee shall exercise their rights to request delivery of
information or other performance under these provisions other than reasonably
and in good faith, or (except with respect to Section 13.9, Section 13.10 or
Section 13.11) for purposes other than compliance with the Securities Act, the
Exchange Act, the Xxxxxxxx-Xxxxx Act and, in each case, the rules and
regulations of the Commission thereunder. The parties hereto acknowledge that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff, or
otherwise, and agree to comply with requests made by the Depositor or the
Trustee 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 Subject Securitization Transaction, each of the Master
Servicers, the Special Servicers, any Primary Servicer and the Trustee shall
cooperate fully with the Depositor and the Trustee, as applicable, to deliver or
make available to the Depositor or the Trustee, as applicable (including any of
their assignees or designees), any and all information in its possession and
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 disclosure relating to the Master Servicers, the Special
Servicers, any Primary Servicer and the Trustee, as applicable, and any
Reporting 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 13.1, but in any event, shall, upon reasonable advance written
request, provide such information in sufficient time to allow the Depositor or
the Trustee, as applicable, to satisfy any related filing requirements.
Section 13.2 Certain Information to be Provided by the Master
Servicers, the Special Servicers, any Primary Servicer and the Trustee
(a) For as long as the Trust is subject to the reporting requirements
of the Exchange Act, in connection with the succession to any Reporting
Servicer, any Additional Servicer or any Reporting Sub-Servicer as servicer,
trustee or paying agent under this Agreement by any Person (i) into which such
Reporting Servicer, any Additional Servicer or any Reporting Sub-Servicer, as
the case may be, may be merged or consolidated, or (ii) which may be appointed
as a successor (or in the case of the Trustee, successor Trustee, co-Trustee or
Separate Trustee) to any Reporting Servicer, any Additional Servicer or any
Reporting Sub-Servicer, as the case may be, such Reporting Servicer, any
Additional Servicer or any Reporting Sub-Servicer, as the case may be, shall
(and each Reporting Servicer, as applicable, shall (a) use reasonable efforts to
cause each Additional Servicer and each Reporting Sub-Servicer (other than any
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Additional Servicer and each Reporting Sub-Servicer (other than any party
to this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to) provide to the
Depositor, at least 5 calendar days prior to the effective date of such
succession or appointment, as long as such disclosure prior to such effective
date would not be violative of any applicable law or confidentiality agreement,
otherwise no later than the effective date of such succession or appointment,
(x) written notice to the Depositor and the Trustee of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Depositor and the Trustee, all information reasonably requested by the
Depositor so that it may comply with its reporting obligation under Item 6.02 of
Form 8-K as it relates to the Servicing function with respect to any class of
Certificates.
Section 13.3 Filing Obligations
The Reporting Servicers shall (and shall (a) use reasonable efforts to
cause each Additional Servicer and each Reporting Sub-Servicer (other than any
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Additional Servicer and each Reporting Sub-Servicer (other than any party
to this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to) reasonably cooperate
with the Depositor in connection with the satisfaction of the Trust's reporting
requirements under the Exchange Act.
Section 13.4 Form 10-D Filings
Within 15 calendar days after each Distribution Date (the "10-D Filing
Deadline") (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 Monthly Certificateholder's
Report attached thereto. Any necessary disclosure in addition to the Monthly
Certificateholder's Report that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall, pursuant to the immediately
succeeding paragraph, be reported by the parties set forth on Schedule XVII and
directed to the Depositor and the Trustee for approval by the Depositor. The
Trustee will have no duty or liability for any failure hereunder to determine or
prepare any Additional Form 10-D Disclosure (other than such Additional Form
10-D Disclosure which is to be reported by it as set forth on Schedule XVII)
absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule XVII hereto, within 5 calendar days
after the related Distribution Date, each Person identified on Schedule XVII
shall be required to provide to the Depositor and the Trustee, in a form readily
convertible to an XXXXX-compatible format (to the extent available to such party
in such format), or in such other form as otherwise agreed by the Depositor, the
Trustee and such party, to the extent a Servicing Officer or Responsible
Officer, as the case may be, thereof has actual knowledge (other than with
respect to disclosure required pursuant to Item 1117 or Item 1119 of Regulation
AB as to such party which shall be reported if actually known by any Servicing
Officer or Responsible Officer, as the case may be, or any lawyer in the
in-house legal department of such party), together with an Additional Disclosure
Notification in the form attached hereto as Exhibit AA. The Trustee shall
provide prompt notice to the Depositor to the extent the Trustee is notified of
an event reportable on Form 10-D for which it has not received the necessary
Additional Form 10-D Disclosure from such party. The Trustee shall have no duty
under this Agreement to monitor or enforce the performance by the parties listed
on Schedule XVII of their duties under this paragraph or proactively solicit or
procure from any such parties any Additional Form 10-D Disclosure information.
Unless otherwise directed by the Depositor, and subject to any comments received
to such disclosure from the Depositor by the 2nd calendar day after such 5th
calendar day after the related Distribution Date, the Trustee shall include the
form and substance of the Additional Form 10-D Disclosure on the related Form
10-D. The Depositor will be responsible for any reasonable fees charged and
out-of-pocket expenses incurred by the Trustee in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph. For the
avoidance of doubt, the Master Servicer shall be required to report to the
Depositor and the Trustee the net operating income of a Significant Obligor to
the extent and under the conditions such net operating income is required to be
reported under Regulation AB.
On or prior to the 4th Business Day prior to the 15th calendar day
after the related Distribution Date the Trustee shall prepare and deliver
electronically the Form 10-D to the Depositor for review. No later than the end
of business on the 2nd Business Day prior to the 15th calendar day after the
related Distribution Date, the Depositor (or, if so directed by the Depositor
and agreed to by the Trustee, the Trustee pursuant to a power of attorney
provided to the Trustee by the Depositor pursuant to Item 601(b)(24) of
Regulation S-K) 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. The Trustee shall (a) file such Form 10-D, upon
signature thereof as provided in Section 13.14, not later than 5:30 p.m. (New
York City time) on the 15th calendar day after the related Distribution Date or
(b) use commercially reasonable best efforts to file such Form 10-D, if the
Trustee received the signed Form 10-D after the signing deadline set forth in
Section 13.14, not later than 5:30 p.m. (New York City time) on the 15th
calendar day after the related Distribution Date; provided that, if the Trustee
cannot file the Form 10-D prior to the deadline set forth in the immediately
preceding clause (b), the Trustee shall file such Form 10-D as soon as possible
thereafter. 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 13.8(b). After filing with the Commission, the Trustee shall promptly
make available on its internet website a final executed copy of each Form 10-D.
The parties to this Agreement acknowledge (and each Additional Servicer and each
Reporting Sub-Servicer shall be required to acknowledge) that the performance by
the Trustee of its duties under this Section 13.4 related to the timely
preparation and filing of Form 10-D is contingent upon such parties (and, to the
extent applicable, any Additional Servicer or Reporting Sub-Servicer) observing
all applicable deadlines in the performance of their duties under this Section
13.4. 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 or 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 other
party hereto needed to prepare, arrange for execution or file such Form 10-D,
not resulting from its own negligence, bad faith or willful misconduct.
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 5th calendar day after the related Distribution Date
during any year in which the Trustee is required to file a 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 13.5 Form 10-K Filings
On or prior to 5:30 p.m. (New York City time) on the 90th day after the
end of each fiscal year of the Trust or such earlier date as may be required by
the Exchange Act (the "10-K Filing Deadline") (it being understood that the
fiscal year for the Trust ends on December 31st of each year), commencing in
March 2008, the 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 each Reporting Servicer pursuant
to Item 1123 of Regulation AB, as described under Section 13.9;
(ii) (A) the annual reports on assessment of compliance with Servicing
Criteria for each Reporting Servicer pursuant to Item 1122 of Regulation AB,
as described under Section 13.10, and (B) if any Reporting Servicer's report
on assessment of compliance with Servicing Criteria described under Section
13.10 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any Reporting Servicer's
report on assessment of compliance with Servicing Criteria described under
Section 13.10 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
each Reporting Servicer pursuant to Item 1122 of Regulation AB, as described
under Section 13.11, and (B) if any registered public accounting firm
attestation report described under Section 13.11 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 Xxxxxxxx-Xxxxx Certification as described in Section 13.6.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the paragraph immediately below, be reported by the parties
set forth on Schedule XVIII and directed to the Depositor and the Trustee for
approval by the Depositor. 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 on Schedule XVIII) 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 15th (with no grace period) of each year
subsequent to the fiscal year that the Trust is subject to the Exchange Act
reporting requirements, commencing in 2007, each party identified on Schedule
XVIII hereto shall be required to provide to the Depositor and the Trustee the
form and substance of the corresponding Additional Form 10-K Disclosure as set
forth on Schedule XVIII, if applicable, and in a form that is readily
convertible to an XXXXX-compatible format (to the extent available to such party
in such format), or in such other form as otherwise agreed by the Depositor, the
Trustee and such Person together with an Additional Disclosure Notification in
the form attached hereto as Exhibit AA. The Trustee shall, at any time prior to
filing the related Form 10-K, provide prompt notice to the Depositor to the
extent the Trustee is notified of an event reportable on Form 10-K for which it
has not received the necessary Additional Form 10-K Disclosure from such party.
The Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Schedule XVIII of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. Unless otherwise directed by the Depositor,
and subject to any comments received to such disclosure from the Depositor by
March 15th, the Trustee shall include the form and substance of the Additional
Form 10-K Disclosure on the related Form 10-K. The Depositor will be responsible
for any reasonable fees charged and out-of-pocket expenses incurred by the
Trustee in connection with including any Additional Form 10-K Disclosure on Form
10-K pursuant to this paragraph. Any notice delivered to the Trustee pursuant to
this paragraph shall be delivered by facsimile to (000) 000-0000 and by email to
Xxxxx.xxxxx@xxxxxx.xxx or such other address as may hereafter be furnished by
the Trustee to the other parties in writing.
On or prior to 5:00 p.m. (New York City time) on the 8th Business Day
prior to the 10-K Filing Deadline, the Trustee shall prepare and deliver
electronically a draft copy of the Form 10-K to the Depositor for review. No
later than 5:00 p.m. (New York City time) on the 3rd Business Day prior to the
10-K Filing Deadline, a senior officer in charge of securitization of the
Depositor shall sign the Form 10-K on behalf of the Depositor and return an
electronic or fax copy of such signed Form 10-K to the Trustee. If a Form 10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trustee will follow the procedures set forth in Section 13.8(b). After
filing with the Commission, the Trustee shall, pursuant to Section 5.4, make
available on its internet website a final executed copy of each Form 10-K. The
signing party at the Depositor can be contacted at Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a
copy to Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxx, Esq. The parties to this Agreement
acknowledge (and each Additional Servicer and each Reporting Sub-Servicer shall
be required to acknowledge) that the performance by the Trustee of its duties
under this Section 13.5 related to the timely preparation and filing of Form
10-K is contingent upon such parties (and, to the extent applicable, any
Additional Servicer or Reporting Sub-Servicer) observing all applicable
deadlines in the performance of their duties under this Article XIII. The
Trustee shall have no liability with respect to any failure to properly prepare,
arrange for execution or file such Form 10-K resulting 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 10-K on
a timely basis, not resulting from its own negligence, bad faith or willful
misconduct.
If a Form 10-K is permitted to be filed notwithstanding any missing
information for inclusion therein, the Trustee shall nonetheless file such Form
10-K and, if Regulation AB (or Form 10-K itself) permits the inclusion of an
explanation why such information is missing, the Trustee shall include such
explanation of the circumstances (such explanation to be based solely on such
notice regarding the same as may have been delivered to the Trustee by the
person responsible for the missing information).
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 13.6 Xxxxxxxx-Xxxxx Certification
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit BB-1 attached hereto, required
to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting
Servicer shall, and each Reporting Servicer shall (a) use reasonable efforts to
cause each Additional Servicer and each Reporting Sub-Servicer (other than any
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Additional Servicer and each Reporting Sub-Servicer (other than any party
to this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to, provide to the Person
who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March
15th (with no grace period) of each year subsequent to the fiscal year in which
the Trust is subject to the reporting requirements of the Exchange Act and
otherwise within a reasonable period of time upon request, a certification
(each, a "Performance Certification"), in the form attached hereto as Xxxxxxxx
XX-0, XX-0, XX-0 and BB-5, upon which the Certifying Person, the entity for
which the Certifying Person acts as an officer, and such entity's officers,
directors and Affiliates (collectively with the Certifying Person, each a
"Certification Party" and collectively, "Certification Parties") can reasonably
rely. The senior officer in charge of securitization of the Depositor shall
serve as the Certifying Person on behalf of the Trust. Such officer of the
Certifying Person can be contacted at Xxxxxx Xxxxxxx Capital I Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to
Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxx, Esq. If any Reporting Servicer is terminated
or resigns pursuant to the terms of this Agreement, or any applicable
sub-servicing agreement or primary servicing agreement, as the case may be, such
Reporting Servicer shall provide a Performance Certification and a reliance
certificate to the Certifying Person pursuant to this Section 13.6 with respect
to the period of time it was subject to this Agreement or the applicable
sub-servicing or primary servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 13.9, if applicable, (ii)
annual report on assessment of compliance with Servicing Criteria provided
pursuant to Section 13.10 and (iii) registered public accounting firm
attestation report provided pursuant to Section 13.11 and shall include a
certification that each such annual report on assessment of compliance discloses
any material instances of noncompliance described to the registered public
accountants of such Reporting Servicer to enable such accountants to render the
attestation provided for in Section 13.11.
Notwithstanding the foregoing, without limiting the requirements of the
Exchange Act, nothing in this Section shall require any Reporting Servicer (i)
to certify or verify the accurateness or completeness of any information
provided to such Reporting Servicer by third parties (other than a Sub-Servicer
or Additional Servicer retained by it, except for Seller Sub-Servicers with
respect to the Master Servicers or Special Servicers, as applicable), (ii) to
certify information other than to such Reporting Servicer's knowledge and in
accordance with such Reporting Servicer's responsibilities hereunder or (iii)
with respect to completeness of information and reports, to certify anything
other than that all fields of information called for in written reports prepared
by such Reporting Servicer have been completed except as they have been left
blank on their face.
Section 13.7 Form 8-K Filings
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "8-K Filing Deadline") under Form 8-K (each a
"Reportable Event"), 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 ("Form 8-K Disclosure Information") shall,
pursuant to the paragraph immediately below, be reported by any party set forth
on Schedule XIX to which such Reportable Event relates and such Form 8-K
Disclosure Information shall be directed to the Depositor and the Trustee for
approval by the Depositor. The Trustee will have no duty or liability for any
failure hereunder to determine or prepare any Form 8-K Disclosure Information
(other than such Form 8-K Disclosure Information which is to be reported by it
as set forth on Schedule XIX) 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 noon on the 2nd Business Day after the
occurrence of the Reportable Event, the parties listed on Schedule XIX hereto
shall, to the extent a Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge, be required to provide written notice to the
Depositor and the Trustee of such Reportable Event in the form and substance of
the corresponding Form 8-K Disclosure Information, as set forth on Schedule XIX,
if applicable, and in a form that is readily convertible to an XXXXX-compatible
format (to the extent available to such party in such format), or in such other
form as otherwise agreed by the Depositor, the Trustee and such party together
with an Additional Disclosure Notification in the form attached hereto as
Exhibit AA. The Trustee shall have no duty under this Agreement to monitor or
enforce the performance by the parties listed on Schedule XIX of their duties
under this paragraph or proactively solicit or procure from any such parties any
Additional Form 8-K Disclosure information. Unless otherwise directed by the
Depositor, and subject to any comments received to such disclosure from the
Depositor by close of business on the 2nd Business Day after such Reportable
Event, the Trustee shall include the form and substance of the Form 8-K
Disclosure Information on the related Form 8-K. The Depositor will be
responsible for any reasonable fees charged and out-of-pocket expenses incurred
by the Trustee in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
No later than noon (New York City time) on the 3rd Business Day after
the Reportable Event, the Trustee shall prepare the Form 8-K. No later than the
end of business on the 3rd Business Day after the Reportable Event, the
Depositor shall sign the Form 8-K. If so directed by the Depositor, the Trustee
shall (a) file such Form 8-K, upon signature thereof as provided in Section
13.14, not later than 5:30 pm (New York City time) on the 4th Business Day after
the related Reportable Event or (b) use reasonable best efforts to file such
Form 8-K, if the Trustee received the signed Form 8-K after the end of business
on the 3rd Business Day after the Reportable Event, not later than 5:30 pm (New
York City time) on the 4th Business Day after the related Reportable Event;
provided that, if the Trustee cannot file the Form 8-K prior to the deadline set
forth in the immediately preceding clause (b), the Trustee shall file such Form
8-K as soon as possible thereafter. 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 13.8(b). After filing with the Commission, the
Trustee will make available on its internet website a final executed copy of
each Form 8-K. The parties to this Agreement acknowledge (and each Additional
Servicer and each Reporting Sub-Servicer shall be required to acknowledge) that
the performance by the Trustee of its duties under this Section 13.7 related to
the timely preparation and filing of Form 8-K is contingent upon such parties
(and, to the extent applicable, any Additional Servicer or Reporting
Sub-Servicer) observing all applicable deadlines in the performance of their
duties under this Section 13.7. 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 any other party hereto needed to prepare,
arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
The Reporting Servicers shall each promptly notify (and the Reporting
Servicers shall (a) use reasonable efforts to cause each Additional Servicer and
each Reporting Sub-Servicer (other than any party to this Agreement) with which
it has entered into a servicing relationship on or prior to the Closing Date
with respect to the Mortgage Loans and (b) cause each Additional Servicer and
each Reporting Sub-Servicer (other than any party to this Agreement) with which
it has entered into a servicing relationship after the Closing Date with respect
to the Mortgage Loans, to promptly notify) the Depositor and the Trustee, but in
no event later than noon on the 2nd Business Day after its occurrence, of any
Reportable Event applicable to it of which it has actual knowledge to the extent
such party is identified as a "Responsible Party" on Exhibit AA with regard to
such Reportable Event.
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports
(a) On or before January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15 Suspension
Notification relating to the automatic suspension of reporting in respect of the
Trust under the Exchange Act. After the filing of Form 15, the obligations of
the parties to this Agreement under Sections 13.1, 13.2, 13.3, 13.4, 13.5 and
13.7 shall be suspended for so long as the Trust is not subject to the reporting
requirements of the Exchange Act.
(b) The Trustee shall promptly notify the Depositor (which notice may
be sent by facsimile or by email and which shall include the identity of those
Reporting Servicers who did not deliver such information) and each Reporting
Servicer that failed to deliver such information required to be delivered by it
under this Agreement, if all, or any portion of, any disclosure information that
the Trustee has actual knowledge of and that is required to be included in any
Form 8-K, Form 10-D or Form 10-K required to be filed pursuant to this Agreement
is not delivered to it within the delivery deadlines set forth in this Agreement
(including annual compliance statements pursuant to Section 13.9, annual reports
on assessment of compliance with servicing criteria pursuant to Section 13.10
and attestation reports pursuant to Section 13.11). If the Trustee is unable to
timely file with the Commission all or any required portion of any Form 8-K,
Form 10-D or Form 10-K required to be filed by this Agreement because required
disclosure information either was not delivered to it or was delivered to it
after the delivery deadlines set forth in this Agreement or for any other
reason, the Trustee shall promptly notify the Depositor (which may be sent by
facsimile or by email, and which notice shall include the identity of those
Reporting Servicers who either did not deliver such information or delivered
such information to it after the delivery deadlines set forth in this Agreement)
and each Reporting Servicer that failed to make such delivery. In the case of
Form 10-D and Form 10-K, each such Reporting Servicer shall cooperate with the
Depositor and the Trustee to prepare and file a Form 12b-25 and a Form 10-D/A
and Form 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act,
which forms shall be filed no later than one calendar day after the due date for
the related Form 10-D or Form 10-K, as applicable. In the case of Form 8-K, the
Trustee shall, upon receipt of all required Form 8-K Disclosure Information and
upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D that is required to be filed on behalf of the
Trust. In the event that any previously filed Form 8-K, Form 10-D or Form 10-K
needs to be amended, the Trustee shall notify the Depositor and such other
parties as may be required and such parties shall cooperate to prepare any
necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by an
authorized officer of or a senior officer of the Depositor in charge of
securitization, as applicable. The parties to this Agreement acknowledge (and
each Additional Servicer and each Reporting Sub-Servicer shall be required to
acknowledge) that the performance by the Trustee of its duties under this
Section 13.8 related to the timely preparation and filing of Form 15, a Form
12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon
such parties (and, to the extent applicable, any Additional Servicer or
Reporting Sub-Servicer) performing their duties under this Section. 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 Forms 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, 10-D or 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 13.9 Annual Compliance Statements
The Reporting Servicers (each a "Certifying Servicer") shall each (and
the Reporting Servicers shall (a) use reasonable efforts to cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship on or
prior to the Closing Date with respect to the Mortgage Loans and (b) cause each
Additional Servicer and each Reporting Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to) deliver electronically
to the Depositor and the Trustee on or before March 15th (with no grace period),
with respect to any Additional Servicer and each Reporting Sub-Servicer (other
than any party to this Agreement), or March 15th (with no grace period) or if
such day is not a Business Day, the immediately preceding Business Day (with no
cure period), with respect to the Certifying Servicers, of each year, commencing
in March 2008, an Officer's Certificate stating, as to the signer thereof, that
(A) a review of such Certifying Servicer's 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 of 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.
Promptly after receipt of each such Officer's Certificate, the Depositor shall
have the right to review such Officer's Certificate and, if applicable, consult
with each Certifying Servicer, as applicable, as to the nature of any failures
by such Certifying Servicer, in the fulfillment of any of the Certifying
Servicer's obligations hereunder or under the applicable sub-servicing or
primary servicing agreement. None of the Certifying Servicers or any Additional
Servicer or any Reporting Sub-Servicer shall be required to deliver, or to
endeavor to cause the delivery of, any such Officer's Certificate until April
15, in the case of a Certifying Servicer, or April 1, in the case of any
Additional Servicer (excluding any Primary Servicer) or any Reporting
Sub-Servicer (excluding any Primary Servicer), in any given year so long as it
has received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
Notwithstanding the provisions of the immediately preceding paragraph,
with respect to each year in respect of which the Trust is not subject to the
reporting requirements of the Exchange Act, the Trustee shall not be required to
deliver its annual compliance statement set forth above.
Section 13.10 Annual Reports on Assessment of Compliance with Servicing
Criteria
By March 15th (with no grace period) or if such day is not a Business
Day, the immediately preceding Business Day (with no cure period), commencing in
2008, the Reporting Servicers, each at its own expense, shall furnish
electronically (and each of the preceding parties, as applicable, shall (a) use
reasonable efforts to cause, by March 15th (with no grace period), each
Additional Servicer or Reporting Sub-Servicer (other than a party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause, by March
15th (with no grace period), each Additional Servicer or Reporting Sub-Servicer
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to furnish, each at its own expense), to the Trustee and the Depositor, a
report on an assessment of compliance with the Relevant Servicing Criteria with
respect to commercial mortgage backed securities transactions taken as a whole
involving such party that contains (A) a statement by such Reporting Servicer of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such Reporting Servicer used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
Reporting Servicer's assessment of compliance with the Relevant Servicing
Criteria as of and for the period ending the end of the fiscal year covered by
the Form 10-K required to be filed pursuant to Section 13.5, including, if there
has been any material instance of noncompliance with the Relevant Servicing
Criteria, a discussion of each such failure and the nature and status thereof,
and (D) a statement that a registered public accounting firm has issued an
attestation report on such Reporting Servicer's assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
No later than the end of each fiscal year for the Trust for which a
Form 10-K is required to be filed, the Master Servicers, the Special Servicers,
any Primary Servicer and the Trustee shall each forward to the Trustee and the
Depositor the name and address of each Additional Servicer and Reporting
Sub-Servicer engaged by it and what Relevant Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Additional
Servicer or Reporting Sub-Servicer. When the Master Servicers, the Special
Servicers, any Primary Servicer, the Trustee, each Additional Servicer and each
Reporting Sub-Servicer submit their respective assessments by March 15th (with
no grace period), as applicable, to the Trustee, each such party shall also at
such time include, in its submission to the Trustee, the assessment (and
attestation pursuant to Section 13.11) of each Additional Servicer and Reporting
Sub-Servicer engaged by it.
Promptly after receipt of each such report on assessment of compliance,
(i) the Depositor shall have the right to review each such report and, if
applicable, consult with the Reporting Servicers as to the nature of any
material instance of noncompliance with the Relevant Servicing Criteria by the
respective Reporting Servicer, and (ii) the Trustee shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Schedule XVI and notify the Depositor of any exceptions.
None of the Master Servicers, the Special Servicers, any Primary Servicer, the
Trustee or any Additional Servicer or Reporting Sub-Servicer shall be required
to deliver, or to endeavor to cause the delivery of, any such reports until
April 15 in the case of the Master Servicers, the Special Servicers, any Primary
Servicer or the Trustee, or April 1 in the case of any Additional Servicer or
Reporting Sub-Servicer, in any given year so long as it has received written
confirmation from the Depositor that a Form 10-K is not required to be filed in
respect of the Trust for the preceding calendar year. The parties hereto
acknowledge that a material instance of noncompliance with the Relevant
Servicing Criteria reported on an assessment of compliance pursuant to this
Section 13.10 by the Reporting Servicers shall not, as a result of being so
reported, in and of itself, constitute a breach of such parties' obligations, as
applicable, under this Agreement unless otherwise provided for in this
Agreement.
Notwithstanding any contrary provision of this Section 13.10 and
Section 13.11, with respect to each year in respect of which the Trust is not
subject to the reporting requirements of the Exchange Act, each Reporting
Servicer (or any Additional Servicer or Reporting Sub-Servicer with which the
applicable Reporting Servicer has entered into a servicing relationship with
respect to the Mortgage Loans (other than a party to this Agreement)) will be
entitled at its option, at its own expense, in lieu of delivering or causing to
be delivered a report on an assessment of compliance with the Relevant Servicing
Criteria otherwise required to be delivered by such Person under this Section
13.10 and a related attestation report of a registered public accounting firm
otherwise required to be delivered by such Person under Section 13.11, to cause
a firm of independent public accountants that is a member of the American
Institute of Certified Public Accountants to render and to deliver (which
delivery shall be made not later than the date when such report on an assessment
of compliance and such attestation report would have been required to be
delivered) a statement to the Trustee and the Depositor, to the effect that such
firm has examined the servicing operations of such Reporting Servicer for the
previous calendar year and that, on the basis of such examination, conducted
substantially in compliance with Uniform Single Attestation Program ("USAP"),
such firm confirms that such Reporting Servicer has complied during such
previous calendar year with minimum servicing standards (to the extent
applicable to commercial and multifamily mortgage loans) identified in USAP in
all material respects, except for such significant exceptions or errors in
records that, in the opinion of such firm, USAP requires it to report. In
rendering its report such firm may rely, as to matters relating to the direct
servicing of securitized commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those sub-servicers.
Notwithstanding the provisions of the second preceding paragraph, with
respect to each year in respect of which the Trust is not subject to the
reporting requirements of the Exchange Act, the Trustee shall not be required to
deliver its report on an assessment of compliance set forth above.
Section 13.11 Annual Independent Public Accountants' Servicing Report
By March 15th (with no grace period) or if such day is not a Business
Day, the immediately preceding Business Day (with no cure period), of each year,
commencing in March 2008, the Reporting Servicers, each at its own expense,
shall cause (and each of the Reporting Servicers, as applicable, shall (a) use
reasonable efforts to cause, by March 15th (with no grace period), each
Additional Servicer or Reporting Sub-Servicer (other than a party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause, by March
15th (with no grace period), each Additional Servicer or Reporting Sub-Servicer
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to cause, each at its own expense) a registered public accounting firm
(which may also render other services to any Reporting Servicer) that is a
member of the American Institute of Certified Public Accountants to furnish
electronically a report to the Trustee and the Depositor, to the effect that (i)
it has obtained a representation regarding certain matters from the management
of such Reporting Servicer, which includes an assessment from such Reporting
Servicer of its compliance with the Relevant Servicing Criteria, and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, it is expressing an
opinion as to whether such Reporting Servicer's compliance with the Relevant
Servicing Criteria was fairly stated in all material respects, or it cannot
express an overall opinion regarding such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria. If an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language. Notwithstanding the
foregoing, with respect to each year in respect of which the Trustee, on behalf
of the Trust, is not subject to the reporting requirements of the Exchange Act,
the Reporting Servicer (or any Additional Servicer or Reporting Sub-Servicer
with which the applicable Reporting Servicer has entered into a servicing
relationship with respect to the Mortgage Loans (other than a party to this
Agreement) may, in lieu of furnishing an attestation report as otherwise
required by this Section 13.11, furnish an attestation report as described in
the last paragraph of Section 3.10.
Promptly after receipt of such report from the Reporting Servicers (or
any Additional Servicer or Reporting Sub-Servicer with which the applicable
Reporting Servicer has entered into a servicing relationship with respect to the
Mortgage Loans (other than a party to this Agreement)), (i) the Depositor shall
have the right to review the report and, if applicable, consult with the
applicable Reporting Servicer as to the nature of any material instance of
noncompliance by the Master Servicers, the Special Servicers, the applicable
Primary Servicer, the Trustee or any such Additional Servicer or Reporting
Sub-Servicer with the Servicing Criteria applicable to such Person, and (ii) the
Trustee shall confirm that each assessment submitted pursuant to Section 13.10
is coupled with an attestation meeting the requirements of this Section and
notify the Depositor of any exceptions. The Reporting Servicers shall not be
required to deliver, or to endeavor to cause the delivery of, such reports until
April 15 in the case of the Master Servicers, the Special Servicers, any Primary
Servicer or the Trustee, or April 1 in the case of any Additional Servicer or
Reporting Sub-Servicer, 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.
For the avoidance of doubt, with respect to each year in respect of
which the Trustee, on behalf of the Trust, is not subject to the reporting
requirements of the Exchange Act, the Trustee shall not be required to deliver
the accountant's report for the Trustee set forth above.
Section 13.12 Exchange Act Reporting and Regulation AB Compliance
Indemnification
Each of the Reporting Servicers (each an "Indemnifying Party") shall
indemnify and hold harmless each Certification Party, the Depositor, their
respective directors and officers, and each other person who controls any such
entity within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act (each a "Certification Indemnitee") against any and all
expenses, losses, claims, damages and other liabilities, including without
limitation the costs of investigation, legal defense and any amounts paid in
settlement of any claim or litigation arising out of or based upon (i) the
failure to perform its obligations under this Article XIII by the times required
herein or (ii) the failure of any Additional Servicer or Reporting Sub-Servicer
retained by it (other than, in the case of the Master Servicers and Special
Servicers, as applicable, a Seller Sub-Servicer) to perform its obligations to
the Depositor or Trustee under this Article XIII by the times required herein.
The Reporting Servicers shall (a) use reasonable efforts to cause each
Additional Servicer and each Reporting Sub-Servicer (other than a party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) use reasonable
efforts to cause each Additional Servicer and each Reporting Sub-Servicer (other
than a party to this Agreement) with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans, to
indemnify and hold harmless each Certification Party from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments and other costs and expenses incurred by such
Certification Party arising out of a breach of its obligations to provide any of
the annual compliance statements or annual assessment of servicing criteria or
attestation reports pursuant to this Agreement, or the applicable sub-servicing
or primary servicing agreement, as applicable.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Indemnitee, then the Reporting
Servicers responsible for such indemnification hereunder (collectively with each
Additional Servicer and each Reporting Sub-Servicer "Performing Party") shall
(and the Reporting Servicers shall (a) use reasonable efforts to cause each
Additional Servicer and each Reporting Sub-Servicer with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans (other than a party to this Agreement) and (b) use reasonable
efforts to cause each Additional Servicer and each Reporting Sub-Servicer with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans (other than a party to this Agreement), to)
contribute to the amount paid or payable to the Certification Indemnitee as a
result of the losses, claims, damages or liabilities of the Certification
Indemnitee in such proportion as is appropriate to reflect the relative fault of
the Certification Indemnitee on the one hand and the Performing Party on the
other in connection with a breach of the Performing Party's obligations pursuant
to this Article XIII. The Master Servicers, the Special Servicers, any Primary
Servicer and the Trustee shall use reasonable efforts to cause each Additional
Servicer and each Reporting Sub-Servicer with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage Loans
(other than a party to this Agreement) to agree to the foregoing indemnification
and contribution obligations.
As promptly as reasonably practicable after receipt by any
Certification Indemnitee under this Section 13.12 of notice of the commencement
of any action, and as a condition precedent to the indemnification provided for
in this Section 13.12, such Certification Indemnitee will, if a claim in respect
thereof is to be made against the applicable Indemnifying Party under this
Section 13.12, notify the applicable Indemnifying Party in writing of the
commencement thereof. In case any such action is brought against any
Certification Indemnitee, the applicable Indemnifying Party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the Certification Indemnitee promptly after receiving the aforesaid
notice from such Certification Indemnitee, to assume the defense thereof, with
counsel selected by the applicable Indemnifying Party and reasonably
satisfactory to such Certification Indemnitee (which approval shall not be
unreasonably withheld, conditioned or delayed); provided, however, that if the
defendants in any such action include both the Certification Indemnitee and the
applicable Indemnifying Party, and the Certification Indemnitee shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other Indemnified Parties that are different from or additional to those
available to the applicable Indemnifying Party, the Certification Indemnitee
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
Certification Indemnitee. Upon receipt of notice from the applicable
Indemnifying Party to such Certification Indemnitee of its election so to assume
the defense of such action and approval by the Certification Indemnitee of
counsel (which approval shall not be unreasonably withheld, conditioned or
delayed), the applicable Indemnifying Party will not be liable for any legal or
other expenses subsequently incurred by such Certification Indemnitee in
connection with the defense thereof, unless the applicable Indemnifying Party
has authorized (which authorization shall not be unreasonably withheld,
conditioned or delayed) the employment of counsel for the Certification
Indemnitee at the expense of the applicable Indemnifying Party. The applicable
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld, conditioned or delayed) but, if settled with such consent or if there
be a final judgment for the plaintiff, the applicable Indemnifying Party shall
indemnify the Certification Indemnitee from and against any loss or liability by
reason of such settlement or judgment. If the applicable Indemnifying Party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the Certification Indemnitee (which approval
shall not be unreasonably withheld, conditioned or delayed) or, if such
settlement provides for an unconditional release of the Certification Indemnitee
in connection with all matters relating to the proceeding that have been
asserted against the Certification Indemnitee in such proceeding by the other
parties to such settlement, which release does not include a statement as to or
an admission of fault, culpability or a failure to act by or on behalf of any
Certification Indemnitee without the consent of the Certification Indemnitee.
Section 13.13 Amendments
This Article XIII may be amended by the parties hereto pursuant to
Section 15.3 (without, in each case, any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement) for purposes of complying with Regulation AB and/or to conform to
standards developed within the commercial mortgage backed securities market;
provided that the reports and certificates required to be prepared and delivered
pursuant to Sections 13.9, 13.10 and 13.11 shall not be eliminated without
Rating Agency Confirmation.
Section 13.14 Exchange Act Report Signatures; Article XIII Notices
(a) Each Form 8-K report and Form 10-D report shall be signed by the
Depositor, or, if so directed by the Depositor, and agreed to by the Trustee by
the Trustee pursuant to a power of attorney provided to the Trustee by the
Depositor in accordance with procedures to be agreed upon by the Depositor and
the Trustee and meeting the requirements of Item 601(b)(24) of Regulation S-K.
The Depositor shall provide its signature or power of attorney to the Trustee by
electronic or fax transmission (with hard copy to follow by overnight mail) no
later than noon (New York City time) on the Business Day prior to the 15th
calendar day following the related Distribution Date for Form 10-D, and not
later than the end of business on the 3rd Business Day after the Reportable
Event for Form 8-K (provided, that in each case the Trustee shall not file the
related form until the Depositor has given its approval thereof). If a Form 8-K
or Form 10-D cannot be filed on time or if a previously filed Form 8-K or Form
10-D needs to be amended, the Trustee will follow the procedures set forth in
this Article XIII. The signing party at the Depositor can be contacted at Xxxxxx
Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Friend, with a copy to Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxx, Esq. and the
signing party at the Trustee, if applicable, can be contacted at U.S. Bank
National Association at its Corporate Trust Office.
(b) The Trustee shall have no liability for any loss, expense, damage
or claim arising out of or with respect to its having signed by power of
attorney any Form 8-K or Form 10-D if the power of attorney provided to it by
the Depositor pursuant to the immediately preceding paragraph was not properly
prepared, or if the requirements of Regulation S-K applicable to the use of
powers of attorney are not complied with, not resulting from its own negligence,
bad faith or willful misconduct.
(c) For the avoidance of doubt:
(i) No Master Servicer shall be subject to an Event of Default pursuant
to the last clause of the definition of "Event of Default" and no Special
Servicer shall be terminated pursuant to Section 9.30(b)(x), nor shall any
such party be deemed to not be in compliance under this Agreement for
purposes of Section 13.14, during any grace period provided for in this
Article XIII, provided, that if any such party fails to comply with the
delivery requirements of this Article XIII by the expiration of any
applicable grace period such failure shall constitute an Event of Default or
be grounds for termination, as applicable; and
(ii) No Master Servicer shall be subject to an Event of Default
pursuant to the last clause of the definition of "Event of Default" and no
Special Servicer shall be terminated pursuant to Section 9.30(b)(x) nor
shall any such party be deemed to not be in compliance under this Agreement
for purposes of Section 13.14, for failing to deliver any item required
under this Article XIII by the time required hereunder following the date
that the Trustee files the Form 15 relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act, unless such items
will be included in any Exchange Act report that relates to any year in
which the Trust was subject to the filing requirements of the Exchange Act.
(d) Any notice or notification required to be delivered by the Trustee
to the Depositor pursuant to this Article XIII, may be delivered by facsimile to
Xxxxxx Friend at (000) 000-0000 or Xxxxxxx Xxxxxx at (000) 000-0000, via e-mail
to Xxxxxx Friend at xxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx or Xxxxxxx Xxxxxx at
Xxxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx, or telephonically by calling Xxxxxx Friend at
(000) 000-0000 or Xxxxxxx Xxxxxx at (000) 000-0000, or such other contact
information as may hereafter be furnished by the Depositor to the Trustee.
Section 13.15 Termination of the Trustee and Sub-Servicers
Each of the Reporting Servicers shall terminate, in accordance with the
related sub-servicing agreement, any Sub-Servicer with which it has entered into
such sub-servicing agreement, and the Master Servicer shall terminate any
Primary Servicer in accordance with the terms of the applicable Primary
Servicing Agreement, if such Sub-Servicer or the applicable Primary Servicer, as
the case may be, is in breach of any of its obligations under such sub-servicing
agreement or the applicable Primary Servicing Agreement, as the case may be,
whose purpose is to facilitate compliance by the Depositor of the reporting
requirements of the Exchange Act or with the provisions of Regulation AB and the
related rules and regulations of the Commission.
Notwithstanding anything to the contrary contained in this Agreement,
the Depositor may immediately terminate the Trustee if the Trustee fails to
comply with any of its obligations under this Article XIII; provided that (a)
such termination shall not be effective until a successor trustee shall have
accepted the appointment in accordance with Section 7.6 and all other applicable
provisions of this Agreement, (b) the Trustee may not be terminated due to its
failure to properly prepare or file on a timely basis any Form 8-K, Form 10-K or
Form 10-D or any amendments to such forms or any Form 12b-25 where such failure
results from the Trustee's inability or failure to receive, within the exact
time frames set forth in this Agreement any information, approval, direction or
signature from any other party hereto needed to prepare, arrange for execution
or file any such Form 8-K, Form 10-K or Form 10-D or any amendments to such
forms or any form 12b-25 not resulting from its own negligence, bad faith or
willful misconduct and (c) if, following the Trustee's failure to comply with
any of such obligations under Sections 13.4, 13.5, 13.7, 13.9, 13.10 or 13.11 on
or prior to the dates by which such obligations are to be performed pursuant to,
and as set forth in, such Sections, (i) the Trustee subsequently complies with
such obligations before the Depositor gives written notice to it that it is
terminated in accordance with this Section 13.15 and (ii) the Trustee's failure
to comply does not cause it to fail in its obligations to timely file the
related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related 8-K
Filing Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then the
Depositor shall cease to have the right to terminate the Trustee under this
Section 13.15 on the date on which such Form 8-K, Form 10-D or Form 10-K is so
filed.
ARTICLE XIV
ADDITIONAL SERVICING PROVISIONS
Section 14.1 Enforcement of Due-on-Sale and Due-on-Encumbrance Clauses;
Assumption Agreements; Other Provisions
(a) (i) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(A) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon (i) the full or partial
sale or other transfer of an interest in the related Mortgaged Property
or (ii) a sale or transfer of direct or indirect ownership interests in
the related Mortgagor; or
(B) provides that such Mortgage Loan may not be assumed
without the consent of the mortgagee in connection with any such sale
or other transfer; or
(C) provides that such Mortgage Loan or direct or indirect
ownership interests in the related Mortgagor (other than ownership
interests in a Mortgagor with respect to a Co-op Mortgage Loan) may be
assumed or transferred without the consent of the mortgagee provided
certain conditions set forth in the Mortgage Loan documents are
satisfied;
the applicable Master Servicer shall forward to the applicable Special Servicer
any request for a waiver thereof, and the NCB Master Servicer (with respect to
any NCB, FSB Loan) or the General Special Servicer (with respect to all Mortgage
Loans other than Co-op Mortgage Loans) shall, if and to the extent necessary,
enforce such due-on-sale clause. For the avoidance of doubt, the applicable
Master Servicer may not waive any due-on-sale clause in, or consent to the
assumption of, any Mortgage Loan, or make any determination with respect to any
Mortgage Loan, which by its terms permits transfer or assumption without lender
consent provided certain conditions are satisfied, that such conditions have
been satisfied. The applicable Special Servicer shall enforce such due-on-sale
clause unless the General Special Servicer (in all cases other than with respect
to a Co-op Mortgage Loan) and the Co-op Special Servicer (with respect to Co-op
Mortgage Loans) determines, in accordance with the Servicing Standard, that (1)
not declaring an Event of Default (as defined in the related Mortgage Loan
documents) or (2) granting such consent, as applicable, would be likely to
result in a greater recovery (or an equal recovery, provided the other
conditions for an assumption or waiver of a due-on-sale clause are met), on a
present value basis (discounting at the related Mortgage Rate), than would
enforcement of such clause or the failure to grant such consent. If the
applicable Special Servicer determines that (1) not declaring an Event of
Default (as defined in the related Mortgage Loan documents) or (2) granting such
consent, as applicable, would be likely to result in a greater recovery (or an
equal recovery, provided that the other conditions for an assumption or waiver
of a due-on-sale clause are met), the NCB Master Servicer (with respect to any
NCB, FSB Loan) and the General Special Servicer (in all other cases) shall take
or enter into an assumption agreement from or with the proposed transferee as
obligor thereon, provided that (x) the credit status of the prospective
transferee is in compliance with the Servicing Standard and the terms of the
related Mortgage Loan documents and (y) with respect to any Mortgage Loan which
is a Significant Mortgage Loan, the applicable Special Servicer shall have
received Rating Agency Confirmation that such assumption would not, in and of
itself, cause a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates. To the extent permitted by
the related Mortgage Loan documents, the NCB Master Servicer (with respect to
any NCB, FSB Loan) and the General Special Servicer (in all other cases) shall
use reasonable efforts to cause the related Mortgagor to pay the costs of such
Rating Agency Confirmation, otherwise, such costs shall be a Trust expense.
(ii) Notwithstanding the provisions of any Mortgage Loan, foreclosure
by the holder of a mezzanine loan on any collateral securing a mezzanine
loan to an affiliate of the related Mortgagor shall not, for purposes of
this Agreement, be deemed to be a violation of the due-on-sale clause of the
related Mortgage Loan documents or of clause (i) of this Section 14.1(a) so
long as the foreclosing party is a Permitted Mezzanine Loan Holder, and
other material requirements of the related intercreditor agreement are
satisfied.
(iii) None of the Master Servicers or the Special Servicers shall (x)
consent to the foreclosure of any mezzanine loan other than by a Permitted
Mezzanine Loan Holder or (y) consent to the transfer of any mezzanine loan
except to a Permitted Mezzanine Loan Holder, except, in each case, as
otherwise provided in Section 14.1(a)(i). Neither the consent of the
applicable Master Servicer nor the consent of the applicable Special
Servicer shall be required for the foreclosure by a Permitted Mezzanine Loan
Holder if an event of default has been declared under the related Mortgage
Loan(s) (and each Rating Agency has been notified of such event of default),
except as set forth in any related intercreditor agreement. In no event
shall the holder of a mezzanine loan be required to pay any assumption fee,
modification fee or other service charge in connection with any foreclosure
upon any collateral securing such mezzanine loan, transfer of ownership of
the related Mortgaged Property to such holder of such mezzanine loan and/or
assumption of the related Mortgage Loan; provided, that such holder of
such mezzanine loan may be required to reimburse the applicable Master
Servicer or Special Servicer for any costs or expenses incurred by it in
connection with such foreclosure, transfer and/or assumption. Nothing herein
shall prevent a holder of a mezzanine loan from appointing a receiver or
trustee with respect to any collateral securing such mezzanine loan,
foreclosing upon any reserves, escrow accounts or cash collateral accounts
pledged under the related mezzanine loan (provided none of such accounts
have been pledged under the related Mortgage Loan) or otherwise taking an
assignment of any cash flows from any collateral securing such mezzanine
loan.
(iv) Notwithstanding anything herein to the contrary, the applicable
Master Servicer shall approve and close, without the consent of the
applicable Special Servicer or the Operating Adviser, all transfers of
tenant-in-common ownership interests contemplated by and in accordance with
the related Mortgage Loan documents for any non-Specially Serviced Mortgage
Loan. Upon completion of any such transfer, the applicable Master Servicer
shall promptly (i) provide notice thereof to the applicable Special Servicer
and (ii) advise the applicable Special Servicer as to total number of
transfers with respect to such non-Specially Serviced Mortgage Loan that the
applicable 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) (i) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(A) provides that such Mortgage Loan shall (or, at the
mortgagee's option, may) become due and payable upon (x) the creation
of any additional lien or other encumbrance on the related Mortgaged
Property or (y) an encumbrance, pledge or hypothecation of direct or
indirect ownership interests in the related Mortgagor or its owners
(including any incurrence of mezzanine financing secured by ownership
interests in the related Mortgagor or its owners or the creation of
preferred equity in the related Mortgagor or its owners); or
(B) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related Mortgaged
Property or direct or indirect ownership interests in the related
Mortgagor (other than additional liens or encumbrances of shares and
proprietary leases of tenant-shareholders with respect to Co-op
Mortgage Loans); or
(C) provides that such Mortgaged Property or direct or
indirect ownership interests in the related Mortgagor (other than
encumbrances of shares and proprietary leases of tenant-shareholders
with respect to Co-op Mortgage Loans) may be further encumbered without
the consent of the mortgagee provided certain conditions set forth in
the Mortgage Loan documents are satisfied;
the applicable Master Servicer shall forward to the applicable Special Servicer
any request for a waiver thereof, and the NCB Master Servicer (with respect to
any NCB, FSB Loans) and the General Special Servicer (with respect to any other
Mortgage Loan) shall, if and to the extent necessary, enforce such
due-on-encumbrance clause. For the avoidance of doubt, the applicable Master
Servicer may not waive any due-on-encumbrance clause in, or consent to the
creation of any such additional lien or other encumbrance on the related
Mortgaged Property securing, any Mortgage Loan, or make any determination with
respect to any Mortgage Loan, which by its terms permits encumbrance without
lender consent provided certain conditions are satisfied, that such conditions
have been satisfied. The applicable Special Servicer shall enforce such
due-on-encumbrance clause unless the General Special Servicer (in all cases
other than with respect to any Co-op Mortgage Loan) and the Co-op Special
Servicer (with respect to any Co-op Mortgage Loan): (x) determines, in
accordance with the Servicing Standard, that (1) not declaring an event of
default under such Mortgage Loan or (2) granting such consent, as applicable,
would result in a greater or equal recovery on a present value basis
(discounting at the related Mortgage Rate) than would enforcement of such clause
or the failure to grant such consent; and (y)(A) with respect to any Mortgage
Loan which (i) is a Significant Mortgage Loan or represents 2% or more of the
aggregate outstanding principal balances of all of the Mortgage Loans in the
Trust or (ii) by itself, or as part of a Cross-Collateralized Loan group or
group of Mortgage Loans with affiliated Mortgagors has (a) a Loan-to-Value Ratio
equal to or greater than 85% or (b) a Debt Service Coverage Ratio equal to or
less than 1.2x (in each case, treating the existing debt on the subject
Mortgaged Property and the proposed additional debt as if such total debt were a
single Mortgage Loan), receives from S&P and (B) with respect to any Mortgage
Loan that is one of the ten largest Mortgage Loans by Stated Principal Balance
of all Mortgage Loans at such time (treating any group of Cross-Collateralized
Mortgage Loans or any group of Mortgage Loans with affiliated Mortgagors as a
single Mortgage Loan), receives from Fitch, prior Rating Agency Confirmation
that (1) not declaring an event of default under such Mortgage Loan or (2)
granting such consent, as applicable, would not, in and of itself, cause a
downgrade, qualification or withdrawal of any of the then-current ratings
assigned to the Certificates. To the extent permitted by the related Mortgage
Loan documents, the NCB Master Servicer (with respect to any NCB, FSB Loans) or
the General Special Servicer (with respect to any other Mortgage Loan) shall use
reasonable efforts to cause the Mortgagor to pay the costs associated with such
Rating Agency Confirmation, otherwise, such costs shall be a Trust expense.
If the applicable Special Servicer, in accordance with the Servicing
Standard, determines with respect to any Mortgage Loan, which by its terms
permits transfer, assumption or further encumbrance without lender consent
provided certain conditions are satisfied, that such conditions have not been
satisfied, then the applicable Master Servicer will use reasonable efforts to
not permit the transfer, assumption or further encumbrance with respect to such
Mortgage Loan.
(ii) Notwithstanding the foregoing provisions, and regardless of
whether a particular Co-op Mortgage Loan contains specific provisions
regarding the incurrence of subordinate debt, or prohibits the incurrence of
subordinate debt, or requires the consent of the mortgagee in order to incur
subordinate debt, the NCB Master Servicer may, nevertheless, in accordance
with the Servicing Standard, without the need to obtain any consent
hereunder (and without the need to obtain a Rating Agency Confirmation),
permit the related Mortgagor to incur subordinate debt if the NCB, FSB
Subordinate Debt Conditions have been met (as certified in writing to the
Trustee and the Operating Adviser by the NCB Master Servicer no later than
five Business Days prior to the making of the subject subordinate loan
without right of reimbursement from the Trust) which certification shall
include notice of the circumstances of the waiver, including information
necessary for the Operating Adviser to determine whether the NCB, FSB
Subordinate Debt Conditions have been satisfied); provided that, the NCB
Master Servicer shall not waive any right it has, or grant any consent it is
otherwise entitled to withhold, in accordance with any related
"due-on-encumbrance" clause under any Co-op Mortgage Loan, pursuant to this
paragraph, unless in any such case, all associated costs and expenses are
covered without any expense to the Trust.
(c) Any approval required to be obtained by the applicable Master
Servicer from the applicable Special Servicer for any action taken by the
applicable Master Servicer pursuant to this Section 14.1 with respect to a
non-Specially Serviced Mortgage Loan (the giving of which approval shall be
subject to the Servicing Standard and Section 8.19) shall be deemed given if not
denied in writing within fifteen (15) Business Days (or, in the case of an
assumption transaction, 15 days) after receipt by the applicable Special
Servicer of the applicable Master Servicer's written recommendation and analysis
and any additional information requested by the applicable Special Servicer or
the Operating Adviser, as applicable. If any such action taken by the applicable
Master Servicer pursuant to this Section 14.1 requires the approval of the
Operating Adviser, then such approval shall be deemed given if not denied in
writing within fifteen (15) Business Days (or, in the case of an assumption
transaction, 15 days), which 15-Business Day (or 15 day, as applicable) period
shall coincide with the applicable Special Servicer's 15-Business Day (or 15
day, as applicable) period to object set forth in the preceding sentence.
Nothing in this Section 14.1 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 Section 14.2, the applicable
Special Servicer shall not agree to modify, waive or amend any payment term of
any Mortgage Loan in connection with the taking of, or the failure to take, any
action pursuant to this Section 14.1.
(e) With respect to any Mortgage Loan that permits the related
Mortgagor to incur subordinate indebtedness secured by the related Mortgaged
Property (except for Co-op Mortgage Loans as to which the NCB Subordinate Debt
Conditions are satisfied), the applicable Master Servicer or the applicable
Special Servicer, as applicable, shall enforce the rights of the lender, if any,
under the related Mortgage Loan documents to require such Mortgagor to require
the lender of such subordinate indebtedness to enter into a subordination and
standstill agreement with the Trust.
(f) With respect to any Mortgage Loan, subject to the related Mortgage
Loan documents, neither the applicable Master Servicer nor the applicable
Special Servicer shall permit the related Mortgagor to substitute any real
property, any rights with respect to real property, or any other real property
interest whatsoever for the Mortgaged Property securing such Mortgage Loan as of
the Closing Date without receipt of an Opinion of Counsel, at the expense of the
Mortgagor, to the effect that the substitution will not cause the related
Mortgage Loan to fail to qualify as a "qualified mortgage" as defined under
Section 860G(a)(3) of the Code while such Mortgage Loan is owned by any REMIC
Pool.
(g) The General Special Servicer acknowledges that the General Master
Servicer has delegated certain tasks, rights and obligations to the Primary
Servicers of the SunTrust Loans and with respect to Post-Closing Requests (as
defined in the applicable Primary Servicing Agreements) pursuant to Section 8.4
of this Agreement. Such Primary Servicing Agreements classify certain
Post-Closing Requests as Category 1 Requests (as defined in the Primary
Servicing Agreements), and grant the related Primary Servicers certain authority
to evaluate and process such requests in accordance with this Agreement, the
applicable Primary Servicing Agreement and the applicable Mortgage Loan
documents.
(h) In addition, the Special Servicers acknowledge that, pursuant to
the Sub-Servicing Agreement, the General Master Servicer has delegated certain
tasks, rights and obligations with respect to the Natixis Loans to the Natixis
Sub-Servicers, in its capacity as Primary Servicer.
(i) With respect to the Mortgage Loan designated on the Mortgage Loan
Schedule as Plymouth Road Technical Center that permits the related Mortgagor to
incur subordinate indebtedness, as to which the mortgagee has the right to give
or withhold consent to such subordinate indebtedness pursuant to the related
Mortgage Loan documents, the General Special Servicer shall not give such
consent unless it has first received written confirmation from each Rating
Agency that such consent will not result in the qualification, downgrade or
withdrawal of the then current ratings given such Rating Agency to any Class of
Certificates. To the extent permitted under the related Mortgage Loan document,
the General Master Servicer shall enforce the rights of the lender, if any,
under such Mortgage Loan documents to require such Mortgagor to pay for the
costs of obtaining such written confirmation from the Rating Agencies.
Section 14.2 Modifications, Waivers, Amendments and Consents
(a) Subject to the provisions of Section 8.19 and this Section 14.2,
the applicable Master Servicer and the applicable Special Servicer may, on
behalf of the Trustee, agree to any modification, waiver or amendment of any
term of any Mortgage Loan without the consent of the Trustee or any
Certificateholder.
(i) For any non-Specially Serviced Mortgage Loan, and subject to the
rights of the applicable Special Servicer set forth below, the applicable
Master Servicer shall be responsible subject to the other requirements of
this Agreement with respect thereto, for any request by a Mortgagor for the
consent of the mortgagee or a modification, waiver or amendment of any term
thereof; provided that such consent or modification, waiver or amendment
would not (except as provided in Section 5.1) affect the amount or timing of
any scheduled payments of principal, interest or other amounts (except for
Penalty Charges to the extent permitted under clause (H) below or amounts
that would if collected constitute additional compensation payable soley to
the applicable Master Servicer (or a Primary Servicer or Sub-Servicer) and
not to any other Person under this Agreement) payable under such Mortgage
Loan, affect the obligation of the related Mortgagor to pay a Prepayment
Premium or Yield Maintenance Charge or permit a Principal Prepayment by the
Mortgagor during a prepayment lockout period, result in the release of the
related Mortgagor from any material term thereunder, waive any rights
thereunder with respect to any guarantor thereof, relate to the release or
substitution of any material collateral for such Mortgage Loan or, in the
reasonable judgment of the applicable Master Servicer, materially impair the
security for such Mortgage Loan or reduce the likelihood of timely payments
of amounts due thereon; and provided, further, that this Section 14.2(a)(i)
does not apply to waivers contemplated by Section 14.1. To the extent
consistent with the foregoing, the applicable Master Servicer shall have the
right to grant approvals or waivers or otherwise take actions with respect
to, as applicable, the following:
(A) approving routine leasing activity with respect to: (1)
leases for properties that are residential cooperative properties; and
(2) leases for properties other than residential cooperative properties
for less than the lesser of (a) 15,000 square feet and (b) 20% of the
related Mortgaged Property; provided that (1) except with respect to
any Co-op Mortgage Loan, no subordination, non-disturbance and
attornment agreement (an "SNDA") exists with respect to such lease and
(2) no such lease is a Ground Lease; and provided further that, except
with respect to any Co-op Mortgage Loan, no Master Servicer shall grant
or approve (but shall forward to the applicable Special Servicer for
its approval) any requests for (or any waiver, consent, approval,
amendment or modification in connection with) an SNDA or approval of a
lease that contains an SNDA;
(B) approving annual budgets for the related Mortgaged
Property; provided that no such budget (1) relates to a fiscal year in
which an Anticipated Repayment Date occurs, (2) except with respect to
Co-op Mortgage Loans provides for the payment of operating expenses in
an amount equal to more than 110% of the amounts budgeted therefor for
the prior year or (3) provides for the payment of any material expenses
to any affiliate of the Mortgagor (other than the payment of a
management fee to any property manager if such management fee is no
more than the management fee in effect on the Cut-off Date);
(C) waiving any provision of a Mortgage Loan not requiring the
receipt of a Rating Agency Confirmation if such Mortgage Loan is not a
Significant Mortgage Loan and the related provision of such Mortgage
Loan does not relate to a "due-on-sale" or "due-on-encumbrance" clause
(other than waivers of "due-on-encumbrance" clauses for Co-op Mortgage
Loans as to which the NCB Subordinate Debt Conditions are satisfied) or
defeasance (which shall be subject to the terms of Section 8.3(h)
hereof);
(D) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(E) releases of non-material parcels of a Mortgaged Property
(provided that releases as to which the related Mortgage Loan documents
expressly require the related Mortgagor thereunder to make such
releases upon the satisfaction of certain terms or conditions shall be
made as required by such Mortgage Loan documents);
(F) with respect to any non-Specially Serviced Mortgage Loans,
the applicable Master Servicer may (without the consent of the
applicable Special Servicer) grant a Mortgagor's request for consent to
subject the related Mortgaged Property to an easement, right-of-way or
similar agreement for utilities, access, parking, public improvements
or another similar purpose and may consent to subordination of the
related Mortgage Loan(s) to such easement, right-of-way or similar
agreement; provided that the applicable Master Servicer shall have
determined (i) in accordance with the Servicing Standard that such
easement, right-of-way or similar agreement will not materially
interfere with the then-current use of the related Mortgaged Property
or the security intended to be provided by such Mortgage and will not
materially or adversely affect the value of such Mortgaged Property and
(ii) that no REMIC Pool will fail to qualify as a REMIC as a result
thereof and that no tax on "prohibited transactions" or "contributions"
after the Closing Date would be imposed on any REMIC Pool as a result
thereof; and provided, further that the applicable Master Servicer
shall cause the Mortgagor to pay the costs (including attorneys' fees
and expenses) associated with the determination described in clause
(ii);
(G) consenting to changing the property manager at the request
of the Mortgagor, for so long as (A) the successor property manager is
not affiliated with the Mortgagor and is a reputable manager of similar
properties and (B) the related Mortgage Loan (other than a Co-op
Mortgage Loan) has an unpaid principal balance of less than $5,000,000
or, if the related Mortgage Loan is a Co-op Mortgage Loan, such Co-op
Mortgage Loan has an unpaid principal balance of less than
$10,000,000.;
(H) waive any Penalty Charges on any non-Specially Serviced
Mortgage Loan in connection with any delinquent payment on such
Mortgage Loan;
(I) with respect to Co-op Mortgage Loans, consent to the
modification or amendment of the related Mortgagor's organizational
documents; and
(J) disbursements of any earnouts or holdback amounts;
provided, however, that if in the reasonable judgment of the applicable Master
Servicer any request by a Mortgagor for consent of the mortgagee or any
modification, waiver or amendment in connection with an assumption transaction
of a non-Specially Serviced Mortgage Loan contemplated by Section 14.1 is not
included within the scope of this clause (i), the applicable Master Servicer
shall forward the Mortgagor's request to the applicable Special Servicer for its
approval; provided, further, that with respect to any non-Specially Serviced
Mortgage Loan set forth on Schedule V and any request for the disbursement of
any earnouts or holdback amounts with respect to such non-Specially Serviced
Mortgage Loan, it being understood and agreed that for purposes of this
Agreement, the disbursement of earnouts or holdback amounts shall mean the
disbursement or funding to a Mortgagor of previously unfunded, escrowed or
otherwise reserved portions of the loan proceeds of the applicable non-Specially
Serviced Mortgage Loan, the applicable Master Servicer shall submit such request
for processing by the applicable Special Servicer (which request shall be deemed
approved if the request is not denied by the applicable Special Servicer in
writing to the applicable Master Servicer within ten (10) Business Days of the
applicable Special Servicer's receipt of such request); provided, further, that
if in the reasonable judgment of the applicable Master Servicer any request by a
Mortgagor for consent of the Mortgagee or any modification, waiver or amendment
is not included within the scope of this clause (i), the applicable Special
Servicer shall be responsible for such request in accordance with clause (ii)
below. This Section 14.2(a)(i) is not intended to limit the right of a Master
Servicer to act with respect to other matters specifically delegated to such
Master Servicer pursuant to this Agreement, subject, however, to any
qualifications or limitations on such delegation provided herein.
(ii) The Special Servicers shall be responsible for any request by a
Mortgagor for the consent of the mortgagee and any modification, waiver or
amendment of any term of any Mortgage Loan for which the applicable Master
Servicer is not responsible, as provided above, or if such consent, request,
modification, waiver or amendment relates to a Specially Serviced Mortgage
Loan or a Mortgage Loan that is on the most recent CMSA Servicer Watch List
with respect to a Mortgage Loan other than a Co-op Mortgage Loan, has a Debt
Service Coverage Ratio (based on the most recently received financial
statements and calculated on a trailing twelve month basis) less than the
greater of 1.1x or 20% less than the Debt Service Coverage Ratio as of the
Cut-off Date or with respect to which an event of default has occurred in
the preceding 12 months.
(b) All modifications, waivers or amendments of any Mortgage Loan shall
be (i) in writing (except for waivers of Penalty Charges; provided, however,
that any waivers of Penalty Charges shall be reflected in the applicable Master
Servicer's or Special Servicer's servicing records for the relevant Mortgage
Loan) and (ii) effected in accordance with the Servicing Standard.
(c) Neither the applicable Master Servicer nor the applicable Special
Servicer, on behalf of the Trustee, shall agree or consent to any modification,
waiver or amendment of any term of any non-Specially Serviced Mortgage Loan if
such modification, waiver or amendment would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums and Yield
Maintenance Charges, but excluding any amounts payable as additional
servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a Prepayment
Premium or Yield Maintenance Charge or permit a Principal Prepayment during
any period in which the related Note prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or in
connection with a defeasance or pursuant to Section 9.12, result in a
release of the lien of the Mortgage on any material portion of the related
Mortgaged Property without a corresponding Principal Prepayment in an amount
not less than the fair market value (as determined by an appraisal by an
Appraiser delivered at the expense of the related Mortgagor and upon which
the applicable Master Servicer and the applicable Special Servicer, as
applicable, may conclusively rely) of the property to be released; or
(iv) in the judgment of the applicable Master Servicer or applicable
Special Servicer, as applicable, otherwise materially impair the security
for such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon;
unless either (x) the subject Mortgage Loan is in default or default is
reasonably foreseeable or (y) the applicable Special Servicer has determined
(and may rely on an opinion of counsel in making the determination) that the
modification, waiver or amendment will not be a "significant modification" of
the subject Mortgage Loan within the meaning of Treasury regulations section
1.860G-2(b). Nothing contained in this Section 14.2(c) shall modify the scope of
the modifications, amendments, waivers and consents for Mortgage Loans for which
the applicable Master Servicer and Special Servicer, as applicable, are
responsible under Sections 14.2(a)(i) and (a)(ii).
(d) [Reserved].
(e) Notwithstanding Sections 14.2(a)(i) and 14.2(c), but subject to
Sections 14.2(g) and 14.2(h), the applicable Special Servicer may (i) reduce the
amounts owing under any Specially Serviced Mortgage Loan by forgiving principal,
accrued interest and/or any Prepayment Premium or Yield Maintenance Charge, (ii)
reduce the amount of the Monthly Payment on any Specially Serviced Mortgage
Loan, including by way of a reduction in the related Mortgage Rate, (iii)
forbear in the enforcement of any right granted under any Note or Mortgage
relating to a Specially Serviced Mortgage Loan, (iv) extend the maturity of any
Specially Serviced Mortgage Loan, (v) waive Excess Interest if such waiver
conforms to the Servicing Standard, (vi) permit the release or substitution of
collateral for a Specially Serviced Mortgage Loan and/or (vii) accept a
Principal Prepayment during any lockout period; provided that (A) the related
Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or,
in the judgment of the applicable Special Servicer, such default is reasonably
foreseeable and (B) in the sole good faith judgment of the applicable Special
Servicer and in accordance with the Servicing Standard, such modification would
not reduce the recovery on the subject Mortgage Loan to Certificateholders on a
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Mortgage
Rate).
The determination of the applicable Special Servicer contemplated by
clause (B) of the proviso to the prior paragraph of this Section 14.2(e) shall
be evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the applicable Master Servicer and describing in reasonable detail the basis
for the applicable Special Servicer's determination and the considerations of
the applicable Special Servicer forming the basis of such determination (which
shall include but shall not be limited to information, to the extent available,
such as related income and expense statements, rent rolls (for properties other
than residential cooperative properties), occupancy status and property
inspections, and shall include an Appraisal of the related Mortgage Loan or
Mortgaged Property, the cost of which Appraisal shall be advanced by the
applicable Master Servicer as a Servicing Advance).
(f) The General Special Servicer may agree to any waiver, modification
or amendment of a Mortgage Loan (other than a Co-op Mortgage Loan), and the
Co-op Special Servicer may agree to any waiver, modification or amendment of a
Co-op Mortgage Loan, that is not in default or as to which default is not
reasonably foreseeable if it consults with counsel (and if it is determined by
such Special Servicer to be necessary, provides the Trustee with an Opinion of
Counsel (at the expense of the related Mortgagor or such other Person requesting
such modification or, if such expense cannot be collected from the related
Mortgagor or such other Person, to be paid by the Servicer as a Servicing
Advance)) to obtain advice regarding whether 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),
(ii) will not cause (x) any REMIC Pool to fail to qualify as a REMIC for
purposes of the Code or (y) any REMIC Pool to be subject to any tax under the
REMIC Provisions.
(g) Neither the applicable Master Servicer nor the applicable Special
Servicer shall consent to, make or permit any modification, waiver or amendment
of any term of any Mortgage Loan that would cause an Adverse REMIC Event with
respect to any REMIC Pool, an Adverse Grantor Trust Event with respect to the
Grantor Trust Pool or any event similar to the foregoing with respect to any
REMIC.
(h) In no event shall the applicable Special Servicer (i) extend the
Maturity Date of a Mortgage Loan beyond March 2042; (ii) extend the Maturity
Date of any Mortgage Loan at an interest rate less than the lower of (A) the
interest rate in effect prior to such extension or (B) the then prevailing
interest rate for comparable loans, as determined by the applicable Special
Servicer by reference to available indices for commercial mortgage lending;
(iii) if the Mortgage Loan is secured by a ground lease, extend the Maturity
Date of such Mortgage Loan beyond a date which is 10 years prior to the
expiration of the term of such Ground Lease (after giving effect to all
extension options); or (iv) defer interest due on any Mortgage Loan in excess of
5% of the Stated Principal Balance of such Mortgage Loan; provided that with
respect to clause (iii) above, the applicable Special Servicer gives due
consideration to the term of such Ground Lease prior to any extension beyond a
date 20 years prior to the expiration of the term of such Ground Lease (after
giving effect to all extension options).
(i) [Reserved]
(j) The applicable Master Servicer and the applicable Special Servicer
may, as a condition to granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within its discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan and is permitted by the terms
of this Agreement, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request (provided that such fee does
not constitute a "significant modification" of such Mortgage Loan under Treasury
regulations section 1.860G-2(b)), and (ii) any related costs and expenses
incurred by it. In no event shall the applicable Master Servicer or the
applicable Special Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(k) The applicable Master Servicer and the applicable Special Servicer
shall, except with respect to waivers of Penalty Charges, notify each other and
the Trustee, in writing, of any modification, waiver or amendment of any term of
any Mortgage Loan (including fees charged the Mortgagor) agreed to by the
applicable Master Servicer or the applicable Special Servicer, as the case may
be, and the date thereof, and shall deliver to the Trustee (in the case of the
applicable Special Servicer, with a copy to the applicable Master 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 ten Business Days) following the execution thereof. The applicable Master
Servicer or applicable Special Servicer, as applicable, shall notify the Rating
Agencies of any modification, waiver, except with respect to waivers of Penalty
Charges, or amendment of any term of any Significant Mortgage Loan agreed to by
the applicable Master Servicer or the applicable Special Servicer, as the case
may be. Copies of each agreement whereby any such modification, waiver or
amendment of any term of any Mortgage Loan is effected shall be made available
for review upon prior request during normal business hours at the offices of the
applicable Master Servicer or Special Servicer, as applicable, pursuant to
Section 8.15 or 9.7 hereof, as applicable.
With respect to each Mortgagor that has been established as a
"bankruptcy-remote entity," neither the applicable Master Servicer nor the
applicable Special Servicer shall consent to (x) the amendment by such Mortgagor
of its organizational documents in a manner that would violate any covenant of
such Mortgagor relating to its status as a separate of bankruptcy-remote entity
or (y) any action that would violate any covenant of such Mortgagor relating to
its status as a separate or bankruptcy-remote entity, unless granting such
consent is consistent with the Servicing Standard and, with respect to a
Mortgagor under any Significant Mortgage Loan, the applicable Master Servicer or
the applicable Special Servicer, as applicable, has obtained Rating Agency
Confirmation that such amendment or action would not result in a downgrade or
withdrawal of any rating on a Class of Certificates rated by such Rating Agency.
Section 14.3 Primary Servicer Authority
Notwithstanding any contrary provision of this Agreement (including
this Article XIV), the General Special Servicer acknowledges that the General
Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicers for the SunTrust Loans with respect to Post-Closing Requests
pursuant to Section 8.4 of this Agreement.
With respect to a Category 1 Request that involves a condition, term or
provision that requires, or specifies a standard of, consent or approval of the
applicable Mortgagee under the Mortgage Loan documents, each Primary Servicing
Agreement for the SunTrust Loans provides for the General Master Servicer's
determination of materiality of such condition, term or provision requiring
approval or consent and the referral of such condition, term or provision to the
General Special Servicer for consent in accordance with the terms of such
Primary Servicing Agreements upon a determination of materiality. The General
Special Servicer hereby acknowledges such provisions, including that
"materiality" shall include the existence of an Adverse REMIC Event. Nothing in
this Agreement, however, shall grant the applicable Primary Servicers greater
authority, discretion or delegated rights over Post-Closing Requests than are
set forth in the applicable Primary Servicing Agreements.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1 Binding Nature of Agreement
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 15.2 Entire Agreement
This Agreement contains the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
Section 15.3 Amendment
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC, or
the Class EI Grantor Trust as a grantor trust or to facilitate the
administration and reporting of each REMIC Pool or the Class EI Grantor Trust)
for the purposes of federal income tax law (or comparable provisions of state
income tax law), (iv) to make any other provisions with respect to matters or
questions arising under or with respect to this Agreement not inconsistent with
the provisions hereof, (v) to modify, add to or eliminate the provisions of
Article III relating to transfers of Residual Certificates, (vi) to amend any
provision herein to the extent necessary or desirable to list the Certificates
on a stock exchange, including, without limitation, the appointment of one or
more sub-paying agents and the requirement that certain information be delivered
to such sub-paying agents or (vii) to make any other amendment which does not
adversely affect in any material respect the interests of any Certificateholder
(unless such Certificateholder consents); provided, however, that 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). No such amendment effected pursuant to clause
(i), (ii) or (iv) of the preceding sentence shall (A) adversely affect in any
material respect the interests of any Holder not consenting thereto, without the
consent of 100% of the Certificateholders adversely affected thereby or (B)
adversely affect the status of any REMIC Pool as a REMIC (or the Class EI
Grantor Trust as a grantor trust). Prior to entering into any amendment without
the consent of Holders pursuant to this paragraph, the Trustee may require an
Opinion of Counsel and a Nondisqualification Opinion (in the case of clauses
(i), (ii) and (iii), at the expense of the Depositor, and otherwise at the
expense of the party requesting such amendment, except that if the Trustee
requests such amendment, such amendment shall be at the expense of the
Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives a Rating Agency Confirmation from each Rating Agency (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such Rating Agency Confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with Rating Agency Confirmation that such amendment would not cause the
ratings on any Class of Certificates to be qualified, withdrawn or downgraded;
provided, however, that such amendment may not effect any of the items set forth
in clauses (i) through (iv) of the proviso in paragraph (c) of this Section
15.3. The Trustee may request, at its option, to receive a Nondisqualification
Opinion and/or an Opinion of Counsel that such amendment will not result in an
Adverse Grantor Trust Event, as applicable, and an Opinion of Counsel that any
amendment pursuant to this Section 15.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the parties
with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders; provided that no such amendment may (i) reduce in any manner the amount
of, or delay the timing of the distributions required to be made on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentages of Aggregate Certificate Percentage or Certificate
Balance, the Holders of which are required to consent to any such amendment
without the consent of all the Holders of each Class of Certificates affected
thereby, (iii) no such amendment shall eliminate or reduce a Master Servicer's
or the Trustee's obligation to make an Advance or alter the Servicing Standard
except as may be necessary or desirable to comply with the REMIC Provisions,
(iv) adversely affect the status of any REMIC Pool as a REMIC for federal income
tax purposes (as evidenced by a Nondisqualification Opinion) and the Class EI
Grantor Trust as a grantor trust without the consent of 100% of the
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders), (v) adversely affect in any material respect the interests
of the Holders of the Certificates in a manner other than as described in the
immediately preceding clause (i), without the consent of the Holders of all
Certificates affected thereby, (vi) significantly change the activities of the
Trust, without the consent of the Holders of Certificates representing more than
50% of all the Voting Rights, (vii) modify the provisions of this Section 15.3
without the consent of the Holders of all Certificates then outstanding; or
(viii) 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) without the consent of the Holders of not less than 51%
of the Aggregate Certificate Balance of the Certificates then outstanding
(without regard to Certificates held by the Depositor, any of the Depositor's
Affiliates and/or agents or any Seller); provided that no such amendment may
modify Section 14.2 of this Agreement without Rating Agency Confirmation. The
Trustee shall not consent to any amendment to this Agreement pursuant to this
subsection (c) unless it shall have first received a Nondisqualification Opinion
and/or an Opinion of Counsel that such amendment will not result in an Adverse
REMIC Event or an Adverse Grantor Trust Event, as applicable, and an Opinion of
Counsel that any amendment pursuant to this Section 15.3(c) is permitted by this
Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 15.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 15.3 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 Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this Section
15.3, the parties hereto agree that this Agreement may not be amended in any
manner that is reasonably likely to have an adverse effect on any Primary
Servicer without first obtaining the written consent of such Primary Servicer.
(h) Notwithstanding the fact that the provisions in Section 15.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted activities of the Trustee, the Master Servicers or the Special
Servicers, any Certificate beneficially owned by a Seller or any of its
Affiliates shall be deemed not to be outstanding (and shall not be considered
when determining the percentage of Certificateholders consenting or when
calculating the total number of Certificates entitled to consent) for purposes
of determining if the requisite consents of Certificateholders under this
Section 15.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in this Section
15.3, the parties hereto agree that this Agreement may be amended pursuant to
Section 13.13 herein without any notice to or consent of any of the
Certificateholders, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation, except as provided in Section 13.13.
(j) In addition, notwithstanding anything to the contrary contained in
this Section 15.3, the parties hereto agree that this Agreement may not be
amended with respect to those provisions of this Agreement to which the
2007-HQ11 Master Servicer, the 2007-HQ11 Special Servicer, the 2007-HQ11 Trustee
or the 2007-HQ11 Paying Agent is a third party beneficiary as provided for in
Section 15.9 hereof, without the written consent of the 2007-HQ11 Master
Servicer, the 2007-HQ11 Special Servicer, the 2007-HQ11 Trustee or the 2007-HQ11
Paying Agent, as the case may be.
Section 15.4 GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 15.5 Notices
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given when received by (A) in the case of
the Depositor, Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Friend; (B) in the case of the Trustee, Paying Agent
and Certificate Registrar at the Corporate Trust Office; (C) in the case of the
General Master Servicer, Xxxxx Fargo Bank, N.A., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing, with
a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, N.A., 000 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (D) in the case of the General
Special Servicer, LNR Partners, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq.,
facsimile number (000) 000 0000, and Attention: Xxxxxx Xxxxxxx, facsimile number
(000) 000-0000, with copies to Xxxx Xxxxx, Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx
LLP, 000 X. Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000, facsimile number
(000) 000-0000; (E) in the case of MSMC, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Friend; (F) in the case of the initial Operating
Adviser, LNR Securities Holdings, LLC, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, telecopy number: (305)
695-5449; (G) in the case of the NCB Master Servicer, NCB, FSB, 0000 Xxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X., 00000 Attention: Xxxxxxxx Xxxxx, Real Estate Master
Servicing, Fax: (000) 000-0000; (H) in the case of the Co-op Special Servicer,
National Consumer Cooperative Bank, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000, Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing, Fax: (202)
000-0000; (I) in the case of NCB, FSB, NCB, FSB, 0000 Xxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx Xxxxxxxx; (J) in the case of Natixis,
Natixis Real Estate Capital Inc., 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxx; and (K) in the case of SunTrust, SunTrust
Bank, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx, with
a copy to Xxxxx Xxxxxxxx. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at 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 Holder receives such notice.
Section 15.6 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 15.7 Indulgences; No Waivers
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
Section 15.8 Headings Not to Affect Interpretation
The headings contained in this Agreement are for convenience of
reference only, and shall not be used in the interpretation hereof.
Section 15.9 Benefits of Agreement
Nothing in this Agreement or in the Certificates, express or implied,
shall give to any Person, other than the parties to this Agreement (including
any Primary Servicer to the extent applicable to such Primary Servicer) and
their successors hereunder and the Holders of the Certificates, any benefit or
any legal or equitable right, power, remedy or claim under this Agreement. With
respect to the Non-Trust-Serviced Pari Passu Loan, the 2007-HQ11 Master
Servicer, the 2007-HQ11 Special Servicer, the 2007-HQ11 Trustee and or the
2007-HQ11 Paying Agent, as applicable, shall each be a third party beneficiary
of this Agreement with respect to all provisions herein expressly relating to
compensation, reimbursement or indemnification of the 2007-HQ11 Master Servicer,
the 2007-HQ11 Special Servicer, the 2007-HQ11 Trustee or or the 2007-HQ11 Paying
Agent, as the case may be (including reimbursement for any Pari Passu Loan
Nonrecoverable Advance), any provisions relating to the indemnification of any
such parties and the provisions regarding coordination of P&I Advances. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary without its reasonable consent. Each
holder of a right to receive Excess Servicing Fees shall be a third party
beneficiary to this Agreement with respect to its right to receive such Excess
Servicing Fees.
Section 15.10 Special Notices to the Rating Agencies
(a) The Trustee (or the applicable Master Servicer in the case of
clauses (vi) and (vii) below) shall give prompt notice to the Rating Agencies,
the applicable Special Servicer and the Operating Adviser of the occurrence of
any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Sections 13.13 or 15.3
hereof;
(ii) the Interim Certification and the Final Certification required
pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan pursuant to Section
2.3(a) hereof;
(iv) any resignation of a Master Servicer, a Special Servicer, the
Operating Adviser or the Trustee pursuant to this Agreement;
(v) the appointment of any successor to a Master Servicer, the Trustee,
the Operating Adviser or the Special Servicer pursuant to Section 7.7, 7.14
or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in Section 14.1;
(vii) waiver of a prohibition on subordinate liens on the Mortgaged
Properties (other than with respect to a Co-op Mortgage Loan as to which the
NCB, FSB Subordinate Debt Conditions have been satisfied);
(viii) the making of a final payment pursuant to Section 10.3 hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) Each Certifying Servicer shall, and the Certifying Servicers shall
each (i) use reasonable efforts to cause each Additional Servicer and each
Sub-Servicer (other than a party to this Agreement) with which it has entered
into a servicing relationship on or prior to the Closing Date with respect to
the Mortgage Loans and (ii) cause each Additional Servicer and each Sub-Servicer
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to (x) forward a copy of each annual compliance statement pursuant to
Section 13.9 hereof, (y) forward a copy of each annual report on assessment with
servicing criteria pursuant to Section 13.10 hereof and (z) forward a copy of
each annual independent public accountants' servicing report pursuant to Section
13.11 hereof to the Rating Agencies and the Operating Adviser.
(c) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to Fitch, to:
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance
If to S&P, to:
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(d) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to Section 7.6;
or
(ii) the appointment of a successor trustee pursuant to Section 7.7; or
(iii) the appointment of a successor Operating Adviser pursuant to
Section 9.37.
(e) The Master Servicers shall deliver to the Rating Agencies and the
Depositor any other information as reasonably requested by the Rating Agencies
and the Depositor, and the General Master Servicer shall deliver to the Primary
Servicers and the General Special Servicer each of the reports required to be
delivered by the General Master Servicer to the Primary Servicers and the
General Special Servicer pursuant to the terms of this Agreement. The Trustee
and the Special Servicers shall deliver to the Rating Agencies and the Depositor
any information as reasonably requested by the Rating Agencies and Depositor, as
the case may be.
(f) Any notice or other document required to be delivered or mailed by
the Depositor, the Master Servicers or the Trustee shall be given by such
parties, respectively, on a best efforts basis and only as a matter of courtesy
and accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
Section 15.11 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
Section 15.12 Intention of Parties
It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans and related rights and property to the Trustee, for the
benefit of the Certificateholders, by the Depositor as provided in Section 2.1
be, and be construed as, an absolute sale of the Mortgage Loans and related
property. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans and related property by the Depositor
to the Trustee to secure a debt or other obligation of the Depositor. However,
in the event that, notwithstanding the intent of the parties, the Mortgage Loans
or any related property is held to be the property of the Depositor, or if for
any other reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans or any related property, then this Agreement shall be
deemed to be a security agreement; and the conveyance provided for in Section
2.1 shall be deemed to be a grant by the Depositor to the Trustee, for the
benefit of the Certificateholders, of a security interest in all of the
Depositor's right, title, and interest, whether now owned or hereafter acquired,
in and to:
(i) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the property described in clauses (1)-(4) below:
(1) the Mortgage Loans (including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies)
identified on the Mortgage Loan Schedule, including all Qualifying
Substitute Mortgage Loans, all distributions with respect thereto payable on
and after the Cut-Off Date, and the Mortgage Files; (2) the Distribution
Account, the Interest Reserve Accounts, the Reserve Account, all REO
Accounts, and the Certificate Accounts, including all property therein and
all income from the investment of funds therein (including any accrued
discount realized on liquidation of any investment purchased at a discount);
(3) the REMIC I Regular Interests and the REMIC II Regular Interests; and
(4) the Mortgage Loan Purchase Agreements;
(ii) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (A)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(iii) All cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-115 and 9-305 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the applicable Master
Servicer and the Trustee, shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The applicable Master Servicer shall file,
at the expense of the Trust as an Additional Trust Expense all filings necessary
to maintain the effectiveness of any original filings necessary under the
Uniform Commercial Code as in effect in any jurisdiction to perfect the
Trustee's security interest in such property, including without limitation (i)
continuation statements, and (ii) such other statements as may be occasioned by
any transfer of any interest of a Master Servicer or the Depositor in such
property. In connection herewith, the Trustee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
Section 15.13 Recordation of Agreement
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, if any, shall be effected by the applicable Master Servicer at
the expense of the Trust as an Additional Trust Expense, but only upon direction
of the Depositor accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders of the Trust.
Section 15.14 Rating Agency Monitoring Fees
The parties hereto acknowledge that on the Closing Date the Sellers
will pay the ongoing monitoring fees of the Rating Agencies relating to the
rating of the Certificates and that no monitoring fees are payable subsequent to
the Closing Date in respect of the rating of the Certificates. The Master
Servicers shall not be required to pay any such fees or any fees charged for any
Rating Agency Confirmation (except any confirmation required under Section 8.22,
Section 8.23 or in connection with a termination and replacement of a Master
Servicer following an Event of Default of such Master Servicer).
IN WITNESS WHEREOF, the Depositor, the General Master Servicer, the
General Special Servicer, the NCB Master Servicer, the Co-op Special Servicer
and the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
as General Master Servicer
By: /s/ Xxxxxxx XxXxxxx
------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Sr. Vice President
LNR PARTNERS, INC.,
as General Special Servicer
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
NCB, FSB,
as NCB Master Servicer
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
NATIONAL CONSUMER COOPERATIVE BANK
as Co-op Special Servicer
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, Paying Agent and
Certificate Registrar
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the 29th day of March in the year 2007, before me, the undersigned,
personally appeared Xxxxxxx Xxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument, and that such individual made such appearance before the
undersigned in New York, New York.
/s/ Xxxxx Xxx
------------------------------------
Xxxxx Xxx
Notary Public
STATE OF CALIFORNIA)
: ss.:
COUNTY OF SAN FRANCISCO)
On March 21, 2007, before me, Xxxx Xxxxxx, Notary Public, personally
appeared Xxxxxxx X. XxXxxxx, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or the entity
upon behalf of which the personl acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxx X Xxxxxx
-------------------------------
STATE OF FLORIDA)
: ss.:
COUNTY OF MIAMI-DADE)
The foregoing instrument was acknowledged before me this 27th day of
March, 2007, by Xxxx X. Xxxxxxxxx, as Vice President on behalf of LNR Partners,
Inc., a Florida corporation; such individual is personally known to me or has
produced a driver's license as identification.
/s/ Xxxxx X Xxxxxx
------------------------------------
Print Name: Xxxxx X Xxxxxx
Notary Public, State of Florida
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the 26th day of March, 2007, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxx Xxxxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/ Xxxxxxx Xxxxxx Xxxxx
------------------------------------
Notary Public
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the 26th day of March, 2007, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxx Xxxxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
/s/ Xxxxxxx Xxxxxx Xxxxx
------------------------------------
Notary Public
COMMENWEALTH OF MASSACHUSETTS)
: ss.:
COUNTY OF SUFFOLK)
On the 29th day of March in the year 2007, before me, the undersigned,
personally appeared Xxxxx X. Xxxxx, Vice President, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that she
executed the same in her capacity, and that by her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument, and that the individual made such appearance before the
undersigned in Boston, Massachusetts.
Signature and Office of individual taking acknowledgment
/s/ Xxxxxxxxxxx J Twardzick
------------------------------------
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.050% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1 CERTIFICATES AS OF THE
CLOSING DATE: $43,000,000
CERTIFICATE BALANCE OF THIS CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE:
$543,000,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-1-1 CUSIP No.: 61753J AA 7
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
X.X.XXXX 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with Act..................
rights of survivorship and (State)
not as tenants in common
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-2
[FORM OF CLASS A-1A CERTIFICATE]
THIS CLASS A-1A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1A 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.312% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1A CERTIFICATES AS OF THE
CLOSING DATE: $477,014,000
CERTIFICATE BALANCE OF THIS CLASS A-1A
CERTIFICATE AS OF THE CLOSING DATE:
$477,014,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-1A-1 CUSIP No.: 61753J AA 7
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-3
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.241% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE
CLOSING DATE: $114,800,000
CERTIFICATE BALANCE OF THIS CLASS A-2
CERTIFICATE AS OF THE CLOSING DATE:
$114,800,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-2-1 CUSIP No.: 61753J AC 3
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-4
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.331% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-3 CERTIFICATES AS OF THE
CLOSING DATE: $64,000,000
CERTIFICATE BALANCE OF THIS CLASS A-3
CERTIFICATE AS OF THE CLOSING DATE:
$64,000,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-3-1 CUSIP No.: 61753J AD 1
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-5
[FORM OF CLASS A-4 CERTIFICATE]
THIS CLASS A-4 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.364% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-4 CERTIFICATES AS OF THE
CLOSING DATE: $448,816,000
CERTIFICATE BALANCE OF THIS CLASS A-4
CERTIFICATE AS OF THE CLOSING DATE:
$448,816,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-4-1 CUSIP No.: 61753J AE 9
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-6
[FORM OF CLASS A-M CERTIFICATE]
THIS CLASS A-M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-M 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.406% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-M CERTIFICATES AS OF THE
CLOSING DATE: $163,947,000
CERTIFICATE BALANCE OF THIS CLASS A-M
CERTIFICATE AS OF THE CLOSING DATE:
$163,947,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-M-1 CUSIP No.: 61753J AF 6
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-7
[FORM OF CLASS A-J CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT,
THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER SERVICER,
THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY SERVICERS
OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY
ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-J 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.438% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-J CERTIFICATES AS OF THE
CLOSING DATE: $149,601,000
CERTIFICATE BALANCE OF THIS CLASS A-J
CERTIFICATE AS OF THE CLOSING DATE:
$149,601,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. A-J-1 CUSIP No.: 61753J AG 4
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been
made:
EXHIBIT A-8
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.577% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
THE PASS-THROUGH RATE ON THE CLASS B NCB MASTER SERVICER: NCB, FSB
CERTIFICATES WILL BE A PER ANNUM RATE
EQUAL TO A FIXED RATE SUBJECT TO A CAP
AT THE WEIGHTED AVERAGE NET MORTGAGE
RATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: JANUARY 16,
2008
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $32,790,000
CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [32,790,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. B-1 CUSIP No.: [U6177V AC 6](1)
[61753J AK 5](2)
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-9
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.557% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
THE PASS-THROUGH RATE ON THE CLASS C NCB MASTER SERVICER: NCB, FSB
CERTIFICATES WILL BE A PER ANNUM RATE
EQUAL TO A FIXED RATE SUBJECT TO A CAP
AT THE WEIGHTED AVERAGE NET MORTGAGE
RATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: JANUARY 16,
2008
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $16,395,000
CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [16,395,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. C-1 CUSIP No.: [U6177V AD 4](1)
[61753J AL 3](2)
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-10
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.586% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
THE PASS-THROUGH RATE ON THE CLASS D NCB MASTER SERVICER: NCB, FSB
CERTIFICATES WILL BE A PER ANNUM RATE
EQUAL TO A FIXED RATE SUBJECT TO A CAP
AT THE WEIGHTED AVERAGE NET MORTGAGE
RATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: JANUARY 16,
2008
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $16,394,000
CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [16,394,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No.D-1 CUSIP No.: [U6177V AE 2](1)
[61753J AM 1](2)
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-11
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.685% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
THE PASS-THROUGH RATE ON THE CLASS E NCB MASTER SERVICER: NCB, FSB
CERTIFICATES WILL BE A PER ANNUM RATE
EQUAL TO A FIXED RATE SUBJECT TO A CAP
AT THE WEIGHTED AVERAGE NET MORTGAGE
RATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: JANUARY 16,
2008
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $214,346,000
CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [214,346,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. E-1 CUSIP No.: [U6177V AF 9](1)
[61753J AN 9](2)
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-12
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
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 REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.977% GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
THE PASS-THROUGH RATE ON THE CLASS F NCB MASTER SERVICER: NCB, FSB
CERTIFICATES WILL BE A PER ANNUM RATE
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: JANUARY 16,
2008
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $18,444,000
CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [18,444,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. F-1 CUSIP No.: [U6177V AG 7](1)
[61753J AP 4](2)
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-13
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.977% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
THE PASS-THROUGH RATE ON THE CLASS G NCB MASTER SERVICER: NCB, FSB
CERTIFICATES WILL BE A PER ANNUM RATE
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $14,345,000
CERTIFICATE BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [14,345,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. G-1 CUSIP No.: [U6177V AH 5](1)
[61753J AQ 2](2)
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-14
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.977% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
THE PASS-THROUGH RATE ON THE CLASS H NCB MASTER SERVICER: NCB, FSB
CERTIFICATES WILL BE A PER ANNUM RATE
EQUAL TO THE WEIGHTED AVERAGE NET
MORTGAGE RATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $18,444,000
CERTIFICATE BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [18,444,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. H-1 CUSIP No.: [U6177V AJ 1](1)
[61753J AR 0](2)
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-15
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.059% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $8,198,000
CERTIFICATE BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [8,198,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. J-1 CUSIP No.: [U6177V AK 8](1)
[61753J AS 8](2)
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
--------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.059% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING
DATE: $2,049,000
CERTIFICATE BALANCE OF THIS CLASS K
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [2,049,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. K-1 CUSIP No.: [U6177V AL 6](1)
[61753J AT 6](2)
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-17
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
--------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.059% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING
DATE: $4,099,000
CERTIFICATE BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [4,099,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. L-1 CUSIP No.: [U6177V AM 4](1)
[61753J AU 3](2)
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-18
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
-----------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.059% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $6,148,000
CERTIFICATE BALANCE OF THIS CLASS M
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [6,148,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. M-1 CUSIP No.: [U6177V AN 2](1)
[61753J AV 1](2)
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-19
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
--------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.059% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS N CERTIFICATES AS OF THE CLOSING
DATE: $2,049,000
CERTIFICATE BALANCE OF THIS CLASS N
CERTIFICATE AS OF THE CLOSING DATE:
$[0](1) [2,049,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. N-1 CUSIP No.: [U6177V AP 7](1)
[61753J AW 9](2)
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-20
[FORM OF CLASS O CERTIFICATE]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS O 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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
--------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.059% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS O CERTIFICATES AS OF THE CLOSING
DATE: $6,148,000
CERTIFICATE BALANCE OF THIS CLASS O
CERTIFICATE AS OF THE CLOSING DATE:
$[0] (1) [6,148,000](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. O-1 CUSIP No.: [U6177V AQ 5] (1) [61753J
AX 7](2)
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest
evidenced by this Certificate in the Class O Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class O Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-21
[FORM OF CLASS P CERTIFICATE]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
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 REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS P 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
--------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: 5.059% GENERAL MASTER SERVICER:
XXXXX FARGO BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CUT-OFF DATE: MARCH 1, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS P CERTIFICATES AS OF THE CLOSING
DATE: $18,444,501
CERTIFICATE BALANCE OF THIS CLASS P
CERTIFICATE AS OF THE CLOSING DATE:
$[0] (1) [18,444,501](2) (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. P-1 CUSIP No.: [U6177V AR 3] (1) [61753J
AY 5](2)
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Certificate Balance 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). 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 Pass-Through Rate 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 due to this Certificate's pro rata share
of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer, the Co-op Special Servicer or the
Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
X.X.XXXX NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-22
[FORM OF CLASS EI CERTIFICATE]
THIS CLASS EI CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING
AGENT, THE CERTIFICATE REGISTRAR, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER, THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
PERCENTAGE INTEREST OF THIS CLASS EI GENERAL MASTER SERVICER: XXXXX
CERTIFICATE: 100% FARGO BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF MARCH 1, 2007
CUT-OFF DATE: MARCH 1, 2007 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
No. EI-1
CLASS EI CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT LNR Securities Holdings, LLC is the registered
owner of the interest evidenced by this Certificate in the Class EI Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Paying Agent, the Certificate Registrar, the General Master Servicer, the
NCB Master Servicer, the General Special Servicer and the Co-op Special
Servicer, a summary of certain of the pertinent provisions of which is set forth
hereafter. The Trust consists primarily of the Mortgage Loans, such amounts as
shall from time to time be held in the Certificate Account and Distribution
Account, the Insurance Policies and any REO Properties. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned 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
EI Certificates specified on the face hereof. The Certificates are designated as
the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
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
Paying Agent. 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.
Class EI Certificate represents a beneficial ownership interest in a
portion of the Trust that is treated as grantor trust for federal income tax
purposes, and represents a beneficial ownership of Excess Interest in respect of
Mortgage Loans having a hyper-amortization feature. Any amount of Excess
Interest on deposit in the Excess Interest Sub-account for the related
Collection Period will be paid to the holders of the Class EI Certificates, to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). 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.
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 Certificates are limited in right of payment to 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS EI CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE GENERAL MASTER SERVICER, THE
NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN 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 (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-I
CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE,
WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY
OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE
THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
PERCENTAGE INTEREST OF THIS CLASS R-I GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF MARCH 1, 2007
CUT-OFF DATE: MARCH 1, 2007 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: MARCH 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: APRIL 16, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
No. R-I
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the
registered owner of the interest evidenced by this Certificate in the Class R-I
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned 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
R-I Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
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
Paying Agent. 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.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including as
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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 Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE GENERAL MASTER SERVICER, THE
NCB MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER
THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN 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 (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-II
CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE,
WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY
OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE
THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING
THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED TAX STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN
THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF
NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE
RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-II
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
PERCENTAGE INTEREST OF THIS CLASS R-II GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF MARCH 1, 2007
CUT-OFF DATE: MARCH 1, 2007 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: MARCH 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: APRIL 16, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
No. R-II
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered
owner of the interest evidenced by this Certificate in the Class R-II
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned 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
R-II Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
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
Paying Agent. 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.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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 Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE TRUSTEE, THE GENERAL MASTER SERVICER, THE NCB MASTER
SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER THE PRIMARY
SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR
GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT).
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE CODE OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS
OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND
BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET
FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY
OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF
ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD
OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN 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 (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A "UNITED STATES TAX
PERSON," (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX
PERSON OR (F) A PERSON WITH RESPECT TO WHOM THIS CLASS R-III CERTIFICATE IS
ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE
MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER UNITED
STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE
TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE
REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A
NON-UNITED STATES TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED
IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-III
CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED
TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
PERCENTAGE INTEREST OF THIS CLASS R-III GENERAL MASTER SERVICER: XXXXX FARGO
CERTIFICATE: 100% BANK, N.A.
DATE OF POOLING AND SERVICING NCB MASTER SERVICER: NCB, FSB
AGREEMENT: AS OF MARCH 1, 2007
CUT-OFF DATE: MARCH 1, 2007 GENERAL SPECIAL SERVICER: LNR
PARTNERS, INC.
CLOSING DATE: MARCH 29, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
FIRST DISTRIBUTION DATE: APRIL 16, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
No. R-III
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered
owner of the interest evidenced by this Certificate in the Class R-III
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned 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
R-III Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
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
Paying Agent. 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.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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 Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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
[FORM OF CLASS X CERTIFICATE]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE GENERAL MASTER SERVICER, THE NCB
MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT 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
HEREON 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 REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[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)
--------------------------
(1) For Reg S Book-Entry Certificates only
(2) For 144A Book-Entry Certificates only
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: NA GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
INITIAL NOTIONAL AMOUNT OF THIS CLASS X NCB MASTER SERVICER: NCB, FSB
CERTIFICATE: $[0] (1) [500,000,000]
[500,000,000] [639,471,501] (2), AS OF
THE CLOSING DATE
DATE OF POOLING AND SERVICING GENERAL SPECIAL SERVICER: LNR
AGREEMENT: AS OF MARCH 1, 2007 PARTNERS, INC.
CUT-OFF DATE: MARCH 1, 2007 CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
CLOSING DATE: MARCH 29, 2007 TRUSTEE: U.S. BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X CERTIFICATES AS OF THE CLOSING DATE:
$1,639,471,501
No. X-[1][2][3] CUSIP No.: 61753J AH 2
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
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
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor," which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, the General Master Servicer, the NCB Master
Servicer, the General Special Servicer and the Co-op Special Servicer, a summary
of certain of the pertinent provisions of which is set forth hereafter. The
Trust consists primarily of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account and Distribution Account, the
Insurance Policies and any REO Properties. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned 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 Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). 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 Pass-Through Rate on
the Notional Amount of this Certificate immediately prior to each Distribution
Date. Interest allocated to this Certificate on any Distribution Date will be in
an amount due to this Certificate's pro rata share of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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 denominations of $100,000 initial Notional
Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-27
[FORM OF CLASS X-Y CERTIFICATE]
THIS CLASS X-Y CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE TRUSTEE, THE GENERAL MASTER SERVICER, THE NCB
MASTER SERVICER, THE GENERAL SPECIAL SERVICER, THE CO-OP SPECIAL SERVICER THE
PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED
OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-Y CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
THIS CERTIFICATE REPRESENTS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ13
INITIAL PASS-THROUGH RATE: NA GENERAL MASTER SERVICER: XXXXX FARGO
BANK, N.A.
NCB MASTER SERVICER: NCB, FSB
INITIAL NOTIONAL AMOUNT OF THIS CLASS GENERAL SPECIAL SERVICER: LNR
X-Y CERTIFICATE: $131,338,831, AS OF PARTNERS, INC.
THE CLOSING DATE
CO-OP SPECIAL SERVICER: NATIONAL
CONSUMER COOPERATIVE BANK
DATE OF POOLING AND SERVICING TRUSTEE: U.S. BANK NATIONAL
AGREEMENT: AS OF MARCH 1, 2007 ASSOCIATION
CUT-OFF DATE: MARCH 1, 2007
CLOSING DATE: MARCH 29, 2007
FIRST DISTRIBUTION DATE: APRIL 16, 2007
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X-Y CERTIFICATES AS OF THE CLOSING
DATE: $131,338,831
No. X-Y-1 CUSIP No.: 61753J AJ 8
CLASS X-Y CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT NATIONAL CONSUMER COOPERATIVE BANK is the
registered owner of the interest evidenced by this Certificate in the Class X-Y
Certificates issued by the Trust created pursuant to the Pooling and Servicing
Agreement, dated as specified above (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc. (hereinafter called the "Depositor," which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, the Certificate Registrar, the General Master
Servicer, the NCB Master Servicer, the General Special Servicer and the Co-op
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned 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 Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X-Y Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
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
Paying Agent. 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.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 15th day of each month or,
if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). 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 Pass-Through Rate on
the Notional Amount of this Certificate immediately prior to each Distribution
Date. Interest allocated to this Certificate on any Distribution Date will be in
an amount due to this Certificate's pro rata share of the 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.
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.
Realized Losses, Expense Losses and interest shortfalls 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 Realized Losses, Expense Losses and interest shortfalls 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 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, withdrawals from the Certificate Account 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.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Paying Agent with wiring instructions on or prior to the related
Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding (and under certain circumstances, without regard to Certificates
held by the Depositor, any of the Depositor's Affiliates and/or agents or any
Seller), as specified in the Pooling and Servicing Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon the Certificate. The Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, 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 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-Y Certificates will be issued in denominations of $100,000 initial Notional
Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made to a
Certificateholder for any such registration of transfer or exchange, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.
The Trustee, the Paying Agent, the General Master Servicer, the NCB
Master Servicer, the General Special Servicer , the Co-op Special Servicer or
the Operating Adviser may treat the Person in whose name this Certificate is
registered as of the related Record Date as the owner hereof for the purpose of
receiving distributions as provided in the Pooling and Servicing Agreement and
for all other purposes whatsoever, and none of the Trustee, the Paying Agent,
the General Master Servicer, the NCB Master Servicer, the General Special
Servicer, the Co-op Special Servicer or the Operating Adviser shall be affected
by notice to the contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, Class R-II Certificateholders, the
REMIC III Certificateholders, and the Class A-MFL Certificateholders, as set
forth in Section 10.2 of the Pooling and Servicing Agreement and other than the
obligations in the nature of information or tax reporting) shall terminate on
the earliest of (i) the later of (A) the final payment or other liquidation of
the last Mortgage Loan remaining in the Trust (and final distribution to the
Certificateholders) and (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) the sale of the property held by
the Trust in accordance with Section 10.1(b) of the Pooling and Servicing
Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the
Pooling and Servicing Agreement or (iv) the transfer of the property held in the
Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust and cause the
termination of the Trust in accordance with the requirements set forth in the
Pooling and Servicing Agreement. Upon termination of the Trust and payment of
the Certificates and of all administrative expenses associated with the Trust,
any remaining assets of the Trust shall be distributed to the holders of the
Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
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.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 29, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-Y CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
U.S. 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act..................
not as tenants in common (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-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
March 29, 2007
Xxxxxx Xxxxxxx Capital I Inc. U.S. Bank National Association
0000 Xxxxxxxx 0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc. Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxx 00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Natixis Real Estate Capital Inc. LNR Partners, Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxx Xxxxx, Xxxxxxx 00000
SunTrust Bank National Consumer Cooperative Bank
000 Xxxxxxxxx Xxxxxx 0000 Xxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, X.X. 00000
NCB, FSB
0000 Xxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X., 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any such
documents contained in each Mortgage File are appropriate for their represented
purposes, or are other than what they purport to be on their face.
The Trustee acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders all of the
Depositor's right, title and interest in and to the Mortgage Loans, the REMIC I
Regular Interests, the REMIC II Regular Interests and the assets of Class EI
Grantor Trust, and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement including but not limited to Section 2.2.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
March [__], 2007
Xxxxxx Xxxxxxx Capital I Inc. U.S. Bank National Association
0000 Xxxxxxxx 0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc. Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxx 00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Natixis Real Estate Capital Inc. LNR Partners, Inc.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxx Xxxxx, Xxxxxxx 00000
SunTrust Bank National Consumer Cooperative Bank
000 Xxxxxxxxx Xxxxxx 0000 Xxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxxx, X.X. 00000
NCB, FSB
0000 Xxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X., 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13
-------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (vi), (viii) and (xii) of the definition of "Mortgage File" required to be
in the Mortgage File, and any documents required to be included in the Mortgage
File pursuant to all other clauses of the definition of "Mortgage File" (to the
extent required to be delivered pursuant to the Pooling and Servicing Agreement
and any applicable Primary Servicing Agreement), to the extent actually known by
a Responsible Officer of the Trustee to be required pursuant to the Pooling and
Servicing Agreement (assuming that, with respect to the documents referred to in
clause (xii) of the definition of Mortgage File, an original letter of credit in
the possession of the Trustee is not so required, unless a Responsible Officer
of the Trustee has actual knowledge to the contrary), are in its possession, (b)
such documents have been reviewed by it and have not been materially mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its examination and only as to the
Mortgage Note and the Mortgage or the appraisal of the related Mortgaged
Property, the street address of the Mortgaged Property set forth in the Mortgage
Loan Schedule accurately reflects the information contained in the documents in
the Mortgage File, and (d) each Mortgage Note has been endorsed as required by
the terms of the Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File
identified in the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any of
the documents contained in each Mortgage File are appropriate for their
represented purposes, or are other than what they purport to be on their face or
are in recordable form.
The Trustee acknowledges receipt of notice that the Depositor has
assigned to the Trustee for the benefit of the Certificateholders all of the
Depositor's right, title and interest in and to the Mortgage Loans, the REMIC I
Regular Interests, the REMIC II Regular Interests and the assets of Class EI
Grantor Trust, and that, in the event such assignment is not upheld as an
absolute sale, that the Depositor has granted to the Trustee for the benefit of
Certificateholders a security interest in such items.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
[Date]
U.S. Bank National Association
Document Custody Servicer
Xx. Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ13
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13
---------------------------------------------------------------
In connection with the administration of the Mortgage File held by or
on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of March 1, 2007 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor, Xxxxx Fargo Bank, N. A., as general master
servicer (the "General Master Servicer"), NCB, FSB, as NCB master servicer (the
"NCB Master Servicer," and, together with the General Master Servicer, as
applicable, the "Master Servicer"), LNR Partners, Inc., as general special
servicer (the "General Special Servicer"), National Consumer Cooperative Bank,
as co-op special servicer (the "Co-op Special Servicer" and, together with the
General Special Servicer, as applicable, the "Special Servicer") and you as
trustee, paying agent and certificate registrar (in such capacity, the
"Trustee"), the undersigned as a [Master][Special] Servicer 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.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full.
(Such [Master] [Special] Servicer hereby certifies that all amounts
received in connection with ______________ the Mortgage Loan have been or will
be, following such [Master] [Special] Servicer's release ______________ of the
Trustee Mortgage File, credited to the Certificate Account or the Distribution
Account ______________ pursuant to the Pooling and Servicing Agreement.)
______ 2. Mortgage Loan repurchased.
(Such [Master] [Special] Servicer hereby certifies that the Purchase
Price has been credited to the Distribution Account pursuant to the Pooling and
Servicing Agreement.)
______ 3. Mortgage Loan Defeased.
______ 4. Mortgage Loan substituted.
(Such [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
______ 5. The Mortgage Loan is being foreclosed.
______ 6. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, 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.
[Name of applicable [Master] [Special]
Servicer]
By:
------------------------------------
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS TO DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ13
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13, Class [__] (the "Certificates")
------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ___ Certificates [having an initial Certificate Balance or Notional Amount
as of March 29, 2007 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement, dated as of March 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Xxxxx Fargo
Bank, N. A., as general master servicer (the "General Master Servicer"), NCB,
FSB, as NCB master servicer (the "NCB Master Servicer," and, together with the
General Master Servicer, as applicable, the "Master Servicer"), LNR Partners,
Inc., as general special servicer (the "General Special Servicer"), National
Consumer Cooperative Bank, as co-op special servicer (the "Co-op Special
Servicer" and, together with the General Special Servicer, as applicable, the
"Special Servicer") and you as trustee, paying agent and certificate registrar
(in such capacity, the "Trustee"). All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation by means of general
advertising or in any other manner, or (e) taken any other action, which
(in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution of any Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Transferred Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of any Transferred Certificate
pursuant to the Securities Act or any state securities laws.
Very truly yours,
------------------------------------
(Transferor)
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ13
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 (the "Certificates")
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial Certificate Principal Balance or
Notional Amount as of March 29, 2007 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of March 1,
2007 (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N. A., as general master
servicer (the "General Master Servicer"), NCB, FSB, as NCB master servicer (the
"NCB Master Servicer," and, together with the General Master Servicer, as
applicable, the "Master Servicer"), LNR Partners, Inc., as general special
servicer (the "General Special Servicer"), National Consumer Cooperative Bank,
as co-op special servicer (the "Co-op Special Servicer" and, together with the
General Special Servicer, as applicable, the "Special Servicer") and you as
trustee, paying agent and certificate registrar (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
of the Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account or
for the account of a Qualified Institutional Buyer, and understands that
such Transferred Certificates may be resold, pledged or transferred only
(i) to a person reasonably believed to be a Qualified Institutional Buyer
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, (e) any credit enhancement
mechanism associated with the Transferred Certificates and (f) all related
matters that it has requested.
Very truly yours,
------------------------------------
(Transferor)
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and U.S. Bank National Association, as Certificate Registrar,
with respect to the commercial mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached hereto, as
of a date not more than 16 months preceding the date of sale of the
Certificate in the case of a U.S. bank, and not more than 18 months
preceding such date of sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a
State or Federal authority having supervision over any such institutions or
is a foreign savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached hereto, as
of a date not more than 16 months preceding the date of sale of the
Certificate in the case of a U.S. savings and loan association, and not
more than 18 months preceding such date of sale for a foreign savings and
loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar official
or agency of a State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit
of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement income Security Act of 1974,
as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection (a)(1)
of Rule 144A pursuant to which it qualifies. Note that registered
investment companies should complete Annex 2 rather than this Annex 1.)
-------------------------------------------
-------------------------------------------
-------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of the Transferee, but only if such subsidiaries are consolidated with the
Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned,
consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
Yes No for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificate will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
Date:
-------------------------------
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and U.S. Bank National Association, as Certificate Registrar,
with respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee") or,
if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because the Transferee is part of a Family of Investment Companies
(as defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary basis,
or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee or
the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
___ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
___ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to
the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
---------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------------
Print Name of Transferee or Adviser
Date:
----------------------------------
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ13
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 (the "Certificates")
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ________________________ (the
"Transferee") of Class ___ Certificates [having an initial Certificate Principal
Balance as of March 29, 2007 (the "Closing Date") of $__________][evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of March 1,
2007 (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N. A., as general master
servicer (the "General Master Servicer"), NCB, FSB, as NCB master servicer (the
"NCB Master Servicer," and, together with the General Master Servicer, as
applicable, the "Master Servicer"), LNR Partners, Inc., as general special
servicer (the "General Special Servicer"), National Consumer Cooperative Bank,
as co-op special servicer (the "Co-op Special Servicer" and, together with the
General Special Servicer, as applicable, the "Special Servicer") and you as
trustee, paying agent and certificate registrar (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or
the Certificate Registrar is obligated so to register or qualify the Class
of Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i)
registered pursuant to the Securities Act and registered or qualified
pursuant any applicable state securities laws or (ii) sold or transferred
in transactions which are exempt from such registration and qualification
and the Certificate Registrar has received either: (A) a certificate from
the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a
certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit D-2A or as Exhibit
D-2B to the Pooling and Servicing Agreement; or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the availability
of such exemption from registration under the Securities Act, together with
copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the
provisions of Section 3.3 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION
3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a pledge, disposition or other transfer of any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in any
Certificate or any other similar security with any person in any manner,
(d) made any general solicitation by means of general advertising or in any
other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security, which (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
Person to act, in any manner set forth in the foregoing sentence with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
6. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
7. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or
an entity in which all of the equity owners come within such paragraphs.
The Transferee has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Transferred Certificate; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
Very truly yours,
---------------------------------------
(Transferee)
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13, Class (the
"Certificates")
--------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of March 29, 2007 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N. A., as general master servicer (the "General
Master Servicer"), NCB, FSB, as NCB master servicer (the "NCB Master Servicer,"
and, together with the General Master Servicer, as applicable, the "Master
Servicer"), LNR Partners, Inc., as general special servicer (the "General
Special Servicer"), National Consumer Cooperative Bank, as co-op special
servicer (the "Co-op Special Servicer" and, together with the General Special
Servicer, as applicable, the "Special Servicer") and you as trustee, paying
agent and certificate registrar (in such capacity, the "Trustee"). All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, and for the benefit of the Depositor, the Certificate Registrar
and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been
and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the
Depositor, the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) no interest in the
Certificates may be sold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and
the Certificate Owner desiring to effect such transfer has received either
(A) a certification from such Certificate Owner's prospective transferee
(substantially in the form attached to the Pooling and Servicing Agreement)
setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with
copies of the certification(s) from the transferor and/or transferee
setting forth the facts surrounding the transfer upon which such opinion is
based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will bear
legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION
3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate under
the Securities Act, would render the disposition of any Certificate a
violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate, any interest in any Certificate
or any similar security.
6. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
7. The Transferee is an institutional "accredited investor" as defined
in Rule 501(a) (1), (2), (3) or (7) under 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 an investment in the Certificates;
the Transferee has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
Very truly yours,
---------------------------------------
(Transferee)
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13, Class (the
"Certificates")
--------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ ________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of March 29, 2007 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement, dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N. A., as general master servicer (the "General
Master Servicer"), NCB, FSB, as NCB master servicer (the "NCB Master Servicer,"
and, together with the General Master Servicer, as applicable, the "Master
Servicer"), LNR Partners, Inc., as general special servicer (the "General
Special Servicer"), National Consumer Cooperative Bank, as co-op special
servicer (the "Co-op Special Servicer" and, together with the General Special
Servicer, as applicable, the "Special Servicer") and you as trustee, paying
agent and certificate registrar (in such capacity, the "Trustee"). All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, and for the benefit of the Depositor, the Certificate Registrar
and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate or any interest therein may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or
the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or
(ii) sold or transferred in transactions which are exempt from such
registration and qualification and the Certificate Owner desiring to effect
such transfer has received either (A) a certification from such Certificate
Owner's prospective transferee (substantially in the form attached to the
Pooling and Servicing Agreement) setting forth the facts surrounding the
transfer or (B) an opinion of counsel with respect to the availability of
such exemption, together with copies of the certification(s) from the
transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 3.3 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate will bear
legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE
SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY
SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION
3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
Very truly yours,
---------------------------------------
(Transferee)
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and U.S. Bank National Association, as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of sale for
a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan association
or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement income Security Act
of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
-------------------------------------------
-------------------------------------------
-------------------------------------------
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of the Transferee, but only if such subsidiaries are consolidated with the
Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned,
consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificate are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
Yes No for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificate will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
---------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Certificate
Registrar and the Trustee, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because the Transferee is part of a Family of Investment Companies (as
defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary basis,
or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee or
the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to
the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate only
Yes No for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
-------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
-------------------------------------
Print Name of Transferee or Adviser
Date:
-------------------------------
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement as amended and restated pursuant to which the Residual Certificates
were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Transferee
other than (i) a Disqualified Organization, (ii) a United States Tax Person with
respect to whom income from a Residual Certificate is attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Person or any other United States Tax Person or (iii)
a United States Tax Person treated as a partnership for federal income tax
purposes, any partner of which, directly or indirectly (except through a U.S.
corporation), is not (and is not required to be under the related partnership
agreement) a United States Tax Person.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _______________.
8. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (F) of Section 3.3(e) which
authorizes the Paying Agent to deliver payments on the Residual Certificate to a
Person other than the Transferee and clause (G) of Section 3.3(e) which
authorizes the Certificate Registrar to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
9. No purpose of the Transferee relating to its purchase or any sale of
the Residual Certificates is or will be to impede the assessment or collection
of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee is a United States Tax Person. For this purpose, a
United States Tax Person is a citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United States or
any state thereof or the District of Columbia including any entity treated as
such a corporation or partnership for federal income tax purposes, (iii) an
estate the income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) 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 United States Tax Persons has the authority to control
all substantial decisions of such trust (or to the extent provided in applicable
Treasury Regulations, a trust in existence on August 20, 1996, which is eligible
to be treated as a United States Tax Person).
13. The Transferee will not cause income from the Residual 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
United States Tax Person.
14. Check the applicable paragraph:
[_] The present value of the anticipated tax liabilities associated
with holding the Residual Certificate, as applicable, does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee to
acquire such Residual Certificate;
(ii) the present value of the expected future distributions on such
Residual Certificate; and
(iii) the present value of the anticipated tax savings associated with
holding such Residual 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 Residual Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the Residual 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 Regulations 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 Residual 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 Sections 1.860E-1(c)(4)(i), (ii) and (iii) and
Section 1.860E-1(c)(5) of the U.S. Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Residual 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, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this day
of ____________, ____.
[NAME OF TRANSFEREE]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 20__
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ13
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13, Class [__] (the - "Certificates")
-----------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 2007 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, N. A., as general master servicer (the "General
Master Servicer"), NCB, FSB, as NCB master servicer (the "NCB Master Servicer,"
and, together with the General Master Servicer, as applicable, the "Master
Servicer"), LNR Partners, Inc., as general special servicer (the "General
Special Servicer"), National Consumer Cooperative Bank, as co-op special
servicer (the "Co-op Special Servicer" and, together with the General Special
Servicer, as applicable, the "Special Servicer") and you as trustee, paying
agent and certificate registrar (in such capacity, the "Trustee"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
4. The Transferor does not know and has no reason to know that (i) any
of the statements made by the Transferee under the Transfer Affidavit are false
or (ii) the Transferee will not honor the restrictions on subsequent transfers
by the Transferee under the Transfer Affidavit and Agreement, delivered in
connection with this transfer.
Very truly yours,
---------------------------------------
(Transferor)
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
EXHIBIT F
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REGULATION S CERTIFICATES
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13, Class (the "Certificates")
TO: Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
Clearstream Banking, societe anonyme
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Certificates held by you or on your behalf for our
account are beneficially owned by (a) non-U.S person(s) or (b) U.S. person(s)
who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of such
beneficial interest in the above Certificates in respect of which we are not
able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 20[__]
By:
----------------------------------------------
As, or as agent for, the beneficial owner(s) of
the Certificates to which this certificate
relates.
EXHIBIT G
[Reserved]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM BANK, S. A. or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, N.A., as General Master Servicer
NCB, FSB, as NCB Master Servicer
LNR Partners, Inc., as General Special Servicer
National Consumer Cooperative Bank, as Co-op Special Servicer
U.S. Bank National Association, as Trustee, Paying Agent and Certificate
Registrar
This is to notify you as to the transfer of the beneficial interest in
$_______________ of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer ID No.:
The undersigned hereby represents that this transfer is being made in
accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and
in accordance with any applicable securities laws of any state of the United
States and, if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, each such account is a
qualified institutional buyer or an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act]
and that the purchaser is acquiring beneficial interests in the applicable
Certificate(1) for its own account or for one or more institutional accounts for
which it is acting as fiduciary or agent in a minimum amount equivalent to not
less than U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess
thereof for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
------------------------------------
[Name], [Chief Financial
or other Executive Officer]
------------------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY
TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13, Class (the "Certificates")
TO: U.S. Bank National Association, as Certificate Registrar
Attn: [__________]
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of March 1, 2007 (the "Pooling and Servicing
Agreement") among you, Xxxxxx Xxxxxxx Capital I Inc., Xxxxx Fargo Bank, N.A.,
NCB, FSB, LNR Partners, Inc., National Consumer Cooperative Bank and U.S. Bank
National Association, U.S. $__________ principal amount of the above-captioned
Certificates held by us or on our behalf are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Certificates in transactions
that did not require registration under the United States Securities Act of
1933, as amended (the "Securities Act"). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Securities
Act.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class __
Regulation S Temporary Global Certificate shall be exchanged for an interest in
the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global Certificate:
We hereby agree to hold (and return to the Trustee upon request) any payments
received by us on the Class __ Regulation S Temporary Global Certificate (as
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear System]
or
[CLEARSTREAM BANK, S.A.]
By:
-------------------------------------
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
Xxxx Xxxxxxx Place
Penn Nursing Xxxxxxxx
000-00 Xxxxxxx Xxxxxxx Owners
Manor Towers Owners
Laurelton Gardens Corp.
000/000 Xxxx 00xx Xxxxxxxxx Xxxx.
Xxxxxxx Mutual Homes, Inc. I & II
Inwood Owners, Inc.
Lawrenceville Town Center
Knollwood Manor, Inc.
Xxxxxx-Xxxxxx Owners
High Meadow Cooperative No. 1
Fairburn Towne Houses
Xxxxxxxxxxx Townhouses Cooperative
Bay Terrace Cooperative Section X
Xxxxxx'x Furniture-Novi
Sherbrooke Smithtown Owners
The Xxxxx De Xxxx Cooperative
Xxxxxxxx Place Owners
The Xxxxxx Residence
Beechwood Gardens Owners
Orchard Village Shopping Center
Briar Hill Owners Corp.
Mainstay Cooperative Section One
Xxxxxxxxx Tenants Corporation
000 Xxxx 00xx Xxxxxx, Inc.
Prince Tower Tenants Corp.
0000 Xxxxxxxxxxxx Xxx. Owners
Xxxxxxxx Gardens Owners
000 Xxxx Xxx Owners Corp.
Pelican Pointe Apartments
Victory Parkway Executive Building
2750 Xxxxxxx Owners
CVS Ground Lease-Simpsonville
Manor House Apartments
Columbia Bedford Tractor
Greenwich 33 Apartment Corp.
601 West End Tenants Corp.
Wachovia Bank
Jewelry Building
CVS Spartanburg
Happy Valley Apartments
Parish Property
000 Xxxxxxxxx Xxxxxx Corporation
00-00 000xx Xxxxxx Realty Corp.
Xxxxxx'x Furniture-Xxxx
Jopau Realty
Allofus Tenants Inc.
000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxx
Xxxxx Xxxxx Village Center
Southgate Apartments.
0000 Xxxxxxx Xxxxxx Ltd.
Xxxxxx Xxxxx Xxxxxxxx Xxxx
000-000 Xxxx Xxxxx Street
3231-5-9 Xxxxxx Owners
Gramatan Court Apartments
Cajun Properties
00 Xxxx 00xx Xxxxxx Cooperative
00 Xxxx 00xx Xxxxxx, Inc.
Parkview Manor-Lockland
EXHIBIT K-1
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
[______], between Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Seller"), and
Xxxxxx Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of [______], between the Purchaser, as
depositor, [Xxxxx Fargo Bank, N.A.], as General Master Servicer, [LNR Partners,
Inc.], as General Special Servicer, [NCB, FSB, as NCB Master Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer] and [U.S. Bank National
Association], as Trustee, Paying Agent and Certificate Registrar. In exchange
for the Mortgage Loans and certain other mortgage loans (the "Other Mortgage
Loans") to be purchased by the Purchaser, the Trust will issue to the Depositor
pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The [Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-M and Class A-J] Certificates (the "Public Certificates")
will be sold by the Purchaser to [Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC, Natixis Securities North America Inc. (formerly IXIS
Securities North America Inc.), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and SunTrust Capital Markets, Inc.] (collectively, the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated [______] (the "Underwriting Agreement"), and the
[Class X, Class X-Y, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class EI,
Class R-I, Class R-II and Class R-III] Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated [______] (the "Certificate Purchase Agreement"). The Underwriters will
offer the Public Certificates for sale publicly pursuant to a Prospectus dated
[______], as supplemented by a Prospectus Supplement dated [______] (together,
the "Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates (other than the [Class EI, Class R-I, Class R-II and Class R-III]
Certificates) for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum, dated
as of [______] (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis, the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage
Loans accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month
of [______]. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $[______]. The sale of the Mortgage Loans shall take place on
[______] or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The purchase price to be paid by the Purchaser for
the Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, with
respect to the Mortgage Loans originated or acquired by the Seller and subject
to defeasance, the Seller shall retain the right to designate and establish the
successor borrower and to purchase or cause the purchase on behalf of the
related borrower of the related defeasance collateral ("Seller Defeasance Rights
and Obligations"). In the event the General Master Servicer receives notice of a
defeasance request with respect to a Mortgage Loan originated or acquired by the
Seller and subject to defeasance, the General Master Servicer shall provide upon
receipt of such notice, written notice of such defeasance request to the Seller
or its assignee. Until such time as the Seller provides written notice to the
contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance
Rights and Obligations shall be delivered to the Seller pursuant to the notice
provisions of the Pooling and Servicing Agreement.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller, with the understanding that a Servicing Rights Purchase Agreement,
dated [______], will be executed by the Seller and the General Master Servicer,
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time
on or prior to the Closing Date, shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 5 in favor of
the Trustee, the applicable Master Servicer and the applicable Special Servicer
to empower the Trustee, the applicable Master Servicer and, in the event of the
failure or incapacity of the Trustee and the applicable Master Servicer, the
applicable Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the applicable
Master Servicer and the applicable Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to or on
behalf of the Trustee each of the remaining documents or instruments specified
below (with such exceptions and additional time periods as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of U.S. Bank
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit and indemnity, with a copy of the Mortgage
Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "U.S. Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral for such
Mortgage Loan (other than letters of credit representing tenant security
deposits which have been collaterally assigned to the lender), which shall be
held by the applicable Primary Servicer (or the Master Servicer) on behalf of
the Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, any letter of credit held by the applicable Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) has agreed to assign the applicable letter of credit to the Trust or
at the direction of the Special Servicer to such party as the Special Servicer
may instruct, in each case, at the expense of the applicable Primary Servicer
(or Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender;
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from the Seller to the
Purchaser and from the Purchaser to the Trustee on behalf of the
Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Trustee within such 90-day period, the Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
withheld so long as the Seller is, as certified in writing to the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above (with recording information in blank if such
information is not yet available). Within 15 days following the Closing Date,
the Seller shall deliver and the Purchaser, the Trustee or the agents of either
may submit or cause to be submitted for filing, at the expense of the Seller, in
the appropriate public office for Uniform Commercial Code financing statements,
the assignment referred to in clause (i) above. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall prepare a substitute therefor or
cure such defect, and the Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or file, as the
case may be, and deliver such document or instrument in accordance with this
Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, the Seller shall provide a notice on or prior to
the date that is thirty (30) days after the Closing Date to the franchisor or
the issuing financial institution, as applicable, of the transfer of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing Agreement, and
inform such parties that any notices to the Mortgagor's lender pursuant to such
franchise agreement or letter of credit should thereafter be forwarded to the
Master Servicer and, with respect to each franchise agreement, provide a
franchise comfort letter to the franchisor on or prior to the date that is
thirty (30) days after the Closing Date. After the Closing Date, with respect to
any letter of credit that has not yet been assigned to the Trust, upon the
written request of the Master Servicer or the applicable Primary Servicer, the
Seller will draw on such letter of credit as directed by the Master Servicer or
such Primary Servicer in such notice to the extent the Seller has the right to
do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to the 75th day
after the Closing Date, in accordance with the Primary Servicing Agreement, if
applicable.
The Servicing File shall include, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the Master Servicer and satisfy Seller's obligations under this
sub-paragraph. Each of the foregoing items shall be delivered by the Seller in
electronic form, to the extent such document is available in such form and such
form is reasonably acceptable to the Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement
Mortgage Loans and all distributions with respect thereto, and
the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect. Within 45 days after the Closing
Date, the Seller shall provide the Master Servicer or Primary Servicer, if
applicable, with any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of New York. The Seller has
the requisite power and authority and legal right to own the Mortgage
Loans and to transfer and convey the Mortgage Loans to the Purchaser and
has the requisite power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization or by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument,
other than pursuant to this Agreement, or (C) after giving effect to the
consents or taking of the actions contemplated in subsection (iii), any
law, rule, regulation, order, judgment, writ, injunction or decree of
any court or governmental authority having jurisdiction over the Seller
or its assets, except where in any of the instances contemplated by
clauses (B) or (C) above, any conflict, breach or default, or creation
or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions
contemplated hereby by the Seller or materially and adversely affect its
ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of [______],
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) contained in the Disclosure
Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (ii) (other than the
Memorandum) complies with the requirements of and contains all of the
applicable information required by Regulation AB (as defined in the
Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby that has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or that may be applicable to the Purchaser or its
assets.
(xiii) The Purchaser's 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, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or
its assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(xv) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required (and including the expiration of any grace or cure period),
is not properly executed or is defective on its face, or if there is a breach of
any of the representations and warranties required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case such defect or
breach, either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
party; provided that any breach of the representation and warranty contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the Master Servicer shall, and the Special Servicer may, request that
the Seller, not later than 90 days from the Seller's receipt of the notice of
such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code), but the Seller is diligently attempting to effect such correction
or cure, as certified by the Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is, at
the end of the initial 90-day period, a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the Master Servicer as to whether either of the conditions set forth above
has been satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause, or direct the Seller to
cause, to be delivered to the Master Servicer at the Seller's expense (i) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the Seller if the scope and cost of
the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of
each such Cross-Collateralized Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the steps
described elsewhere in this Section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the Seller for the
cure of the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling
and Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall be
required to notify the Seller of the discovery of the Material Document Defect
or Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the Special Servicer will be entitled: (i) with respect to a
determination that the Seller is or was obligated to repurchase, to collect a
Liquidation Fee, if due in accordance with the definition thereof, based upon
the full Purchase Price of the related Mortgage Loan or REO property, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that Seller is not or was not obligated to repurchase (or the Trust decides that
it will no longer pursue a claim against the Seller for repurchase), (A) to
collect a Liquidation Fee based upon the Liquidation Proceeds as received upon
the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) to
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amount to be paid from amounts in the Certificate
Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchaser shall
have suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of existence for the Seller from the Secretary
of State of New York dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under New York law and has
full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitutes a
default under, the organizational documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict, breach
or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation
of the transactions contemplated hereby by the Seller or materially and
adversely affect its ability to perform its obligations and duties
hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or
in any material impairment of the right or ability of the Seller to
carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally,
(3) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as
Exhibit 4.
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated [______].
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxxx Xxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxxx, with a copy to Xxxxxxxx Xxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: ___________________________________
Name:
Title:
XXXXXX XXXXXXX CAPITAL I INC.
By: ___________________________________
Name:
Title:
EXHIBIT K-2
MORTGAGE LOAN PURCHASE AGREEMENT
(Natixis LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
[______], between Natixis Real Estate Capital, Inc., formerly known as Natixis
Real Estate Capital, Inc. (the "Seller"), and Xxxxxx Xxxxxxx Capital I Inc. (the
"Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of [______], between the Purchaser, as
depositor, [Xxxxx Fargo Bank, N.A.], as General Master Servicer, [LNR Partners,
Inc.], as General Special Servicer, [NCB, FSB, as NCB Master Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer] and [U.S. Bank National
Association], as Trustee, Paying Agent and Certificate Registrar. In exchange
for the Mortgage Loans and certain other mortgage loans (the "Other Mortgage
Loans") to be purchased by the Purchaser, the Trust will issue to the Depositor
pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The [Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-M and Class A-J] Certificates (the "Public Certificates")
will be sold by the Purchaser to [Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC, Natixis Securities North America Inc. (formerly IXIS
Securities North America Inc.), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and SunTrust Capital Markets, Inc.] (collectively, the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated [______] (the "Underwriting Agreement"), and the
[Class X, Class X-Y, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class EI,
Class R-I, Class R-II and Class R-III] Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated [______] (the "Certificate Purchase Agreement"). The Underwriters will
offer the Public Certificates for sale publicly pursuant to a Prospectus dated
[______], as supplemented by a Prospectus Supplement dated [______] (together,
the "Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates (other than the [Class EI, Class R-I, Class R-II and Class R-III]
Certificates) for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum, dated
as of [______] (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis, the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage
Loans accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month
of [______]. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $[______]. The sale of the Mortgage Loans shall take place on
[______] or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The purchase price to be paid by the Purchaser for
the Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, with
respect to the Mortgage Loans originated or acquired by the Seller and subject
to defeasance, the Seller shall retain the right to designate and establish the
successor borrower and to purchase or cause the purchase on behalf of the
related borrower of the related defeasance collateral ("Seller Defeasance Rights
and Obligations"). In the event the General Master Servicer receives notice of a
defeasance request with respect to a Mortgage Loan originated or acquired by the
Seller and subject to defeasance, the General Master Servicer shall provide upon
receipt of such notice, written notice of such defeasance request to the Seller
or its assignee. Until such time as the Seller provides written notice to the
contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance
Rights and Obligations shall be delivered to the Seller pursuant to the notice
provisions of the Pooling and Servicing Agreement.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller, with the understanding that a Servicing Rights Purchase Agreement,
dated [______], will be executed by the Seller and the General Master Servicer,
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time
on or prior to the Closing Date, shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 5 in favor of
the Trustee, the applicable Master Servicer and the applicable Special Servicer
to empower the Trustee, the applicable Master Servicer and, in the event of the
failure or incapacity of the Trustee and the applicable Master Servicer, the
applicable Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the applicable
Master Servicer and the applicable Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to or on
behalf of the Trustee each of the remaining documents or instruments specified
below (with such exceptions and additional time periods as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of U.S. Bank
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit and indemnity, with a copy of the Mortgage
Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "U.S. Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral for such
Mortgage Loan (other than letters of credit representing tenant security
deposits which have been collaterally assigned to the lender), which shall be
held by the applicable Primary Servicer (or the Master Servicer) on behalf of
the Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, any letter of credit held by the applicable Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) has agreed to assign the applicable letter of credit to the Trust or
at the direction of the Special Servicer to such party as the Special Servicer
may instruct, in each case, at the expense of the applicable Primary Servicer
(or Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the original is
held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender;
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from the Seller to the
Purchaser and from the Purchaser to the Trustee on behalf of the
Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Trustee within such 90-day period, the Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
withheld so long as the Seller is, as certified in writing to the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above (with recording information in blank if such
information is not yet available). Within 15 days following the Closing Date,
the Seller shall deliver and the Purchaser, the Trustee or the agents of either
may submit or cause to be submitted for filing, at the expense of the Seller, in
the appropriate public office for Uniform Commercial Code financing statements,
the assignment referred to in clause (i) above. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall prepare a substitute therefor or
cure such defect, and the Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or file, as the
case may be, and deliver such document or instrument in accordance with this
Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, the Seller shall provide a notice on or prior to
the date that is thirty (30) days after the Closing Date to the franchisor or
the issuing financial institution, as applicable, of the transfer of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing Agreement, and
inform such parties that any notices to the Mortgagor's lender pursuant to such
franchise agreement or letter of credit should thereafter be forwarded to the
Master Servicer and, with respect to each franchise agreement, provide a
franchise comfort letter to the franchisor on or prior to the date that is
thirty (30) days after the Closing Date. After the Closing Date, with respect to
any letter of credit that has not yet been assigned to the Trust, upon the
written request of the Master Servicer or the applicable Primary Servicer, the
Seller will draw on such letter of credit as directed by the Master Servicer or
such Primary Servicer in such notice to the extent the Seller has the right to
do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to the 75th day
after the Closing Date, in accordance with the Primary Servicing Agreement, if
applicable.
The Servicing File shall include, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the Master Servicer and satisfy Seller's obligations under this
sub-paragraph. Each of the foregoing items shall be delivered by the Seller in
electronic form, to the extent such document is available in such form and such
form is reasonably acceptable to the Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement
Mortgage Loans and all distributions with respect thereto, and
the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect. Within 45 days after the Closing
Date, the Seller shall provide the Master Servicer or Primary Servicer, if
applicable, with any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of New York. The Seller has
the requisite power and authority and legal right to own the Mortgage
Loans and to transfer and convey the Mortgage Loans to the Purchaser and
has the requisite power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization or by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument,
other than pursuant to this Agreement, or (C) after giving effect to the
consents or taking of the actions contemplated in subsection (iii), any
law, rule, regulation, order, judgment, writ, injunction or decree of
any court or governmental authority having jurisdiction over the Seller
or its assets, except where in any of the instances contemplated by
clauses (B) or (C) above, any conflict, breach or default, or creation
or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions
contemplated hereby by the Seller or materially and adversely affect its
ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of [______],
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) contained in the Disclosure
Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (ii) (other than the
Memorandum) complies with the requirements of and contains all of the
applicable information required by Regulation AB (as defined in the
Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby that has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or that may be applicable to the Purchaser or its
assets.
(xiii) The Purchaser's 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, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or
its assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(xv) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required (and including the expiration of any grace or cure period),
is not properly executed or is defective on its face, or if there is a breach of
any of the representations and warranties required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case such defect or
breach, either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
party; provided that any breach of the representation and warranty contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the Master Servicer shall, and the Special Servicer may, request that
the Seller, not later than 90 days from the Seller's receipt of the notice of
such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code), but the Seller is diligently attempting to effect such correction
or cure, as certified by the Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is, at
the end of the initial 90-day period, a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the Master Servicer as to whether either of the conditions set forth above
has been satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause, or direct the Seller to
cause, to be delivered to the Master Servicer at the Seller's expense (i) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the Seller if the scope and cost of
the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of
each such Cross-Collateralized Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the steps
described elsewhere in this Section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the Seller for the
cure of the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling
and Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall be
required to notify the Seller of the discovery of the Material Document Defect
or Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the Special Servicer will be entitled: (i) with respect to a
determination that the Seller is or was obligated to repurchase, to collect a
Liquidation Fee, if due in accordance with the definition thereof, based upon
the full Purchase Price of the related Mortgage Loan or REO property, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that Seller is not or was not obligated to repurchase (or the Trust decides that
it will no longer pursue a claim against the Seller for repurchase), (A) to
collect a Liquidation Fee based upon the Liquidation Proceeds as received upon
the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) to
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amount to be paid from amounts in the Certificate
Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchaser shall
have suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of existence for the Seller from the Secretary
of State of New York dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under New York law and has
full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitutes a
default under, the organizational documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict, breach
or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation
of the transactions contemplated hereby by the Seller or materially and
adversely affect its ability to perform its obligations and duties
hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or
in any material impairment of the right or ability of the Seller to
carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally,
(3) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as
Exhibit 4.
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated [______].
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxxx Xxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxxx, with a copy to Xxxxxxxx Xxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each agree to
execute and deliver such instruments and take such actions as the other may,
from time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement and the Pooling and Servicing Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
NATIXIS REAL ESTATE CAPITAL, INC.
By: ____________________________
Name:
Title:
XXXXXX XXXXXXX CAPITAL I INC.
By: ____________________________
Name:
Title:
EXHIBIT K-3
MORTGAGE LOAN PURCHASE AGREEMENT
(SUNTRUST LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
[______], between SunTrust Bank (the "Seller"), and Xxxxxx Xxxxxxx Capital I
Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of [______], between the Purchaser, as
depositor, [Xxxxx Fargo Bank, N.A.], as General Master Servicer, [LNR Partners,
Inc.], as General Special Servicer, [NCB, FSB, as NCB Master Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer] and [U.S. Bank National
Association], as Trustee, Paying Agent and Certificate Registrar. In exchange
for the Mortgage Loans and certain other mortgage loans (the "Other Mortgage
Loans") to be purchased by the Purchaser, the Trust will issue to the Depositor
pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The [Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-M and Class A-J] Certificates (the "Public Certificates")
will be sold by the Purchaser to [Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC, Natixis Securities North America Inc. (formerly IXIS
Securities North America Inc.), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and SunTrust Capital Markets, Inc.] (collectively, the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated [______] (the "Underwriting Agreement"), and the
[Class X, Class X-Y, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class EI,
Class R-I, Class R-II and Class R-III] Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated [______] (the "Certificate Purchase Agreement"). The Underwriters will
offer the Public Certificates for sale publicly pursuant to a Prospectus dated
[______], as supplemented by a Prospectus Supplement dated [______] (together,
the "Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates (other than the [Class EI, Class R-I, Class R-II and Class R-III]
Certificates) for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum, dated
as of [______] (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis, the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage
Loans accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month
of [______]. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $[______]. The sale of the Mortgage Loans shall take place on
[______] or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The purchase price to be paid by the Purchaser for
the Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, with
respect to the Mortgage Loans originated or acquired by the Seller and subject
to defeasance, the Seller shall retain the right to designate and establish the
successor borrower and to purchase or cause the purchase on behalf of the
related borrower of the related defeasance collateral ("Seller Defeasance Rights
and Obligations"). In the event the General Master Servicer receives notice of a
defeasance request with respect to a Mortgage Loan originated or acquired by the
Seller and subject to defeasance, the General Master Servicer shall provide upon
receipt of such notice, written notice of such defeasance request to the Seller
or its assignee. Until such time as the Seller provides written notice to the
contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance
Rights and Obligations shall be delivered to the Seller pursuant to the notice
provisions of the Pooling and Servicing Agreement.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller, with the understanding that a Servicing Rights Purchase Agreement,
dated [______], will be executed by the Seller and the General Master Servicer,
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time
on or prior to the Closing Date, shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 5 in favor of
the Trustee, the applicable Master Servicer and the applicable Special Servicer
to empower the Trustee, the applicable Master Servicer and, in the event of the
failure or incapacity of the Trustee and the applicable Master Servicer, the
applicable Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the applicable
Master Servicer and the applicable Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to or on
behalf of the Trustee each of the remaining documents or instruments specified
below (with such exceptions and additional time periods as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of U.S. Bank
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit and indemnity, with a copy of the Mortgage
Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "U.S. Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral for such
Mortgage Loan (other than letters of credit representing tenant security
deposits which have been collaterally assigned to the lender), which shall be
held by the applicable Primary Servicer (or the Master Servicer) on behalf of
the Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, any letter of credit held by the applicable Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) has agreed to assign the applicable letter of credit to the Trust or
at the direction of the Special Servicer to such party as the Special Servicer
may instruct, in each case, at the expense of the applicable Primary Servicer
(or Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender;
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from the Seller to the
Purchaser and from the Purchaser to the Trustee on behalf of the
Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Trustee within such 90-day period, the Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
withheld so long as the Seller is, as certified in writing to the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above (with recording information in blank if such
information is not yet available). Within 15 days following the Closing Date,
the Seller shall deliver and the Purchaser, the Trustee or the agents of either
may submit or cause to be submitted for filing, at the expense of the Seller, in
the appropriate public office for Uniform Commercial Code financing statements,
the assignment referred to in clause (i) above. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall prepare a substitute therefor or
cure such defect, and the Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or file, as the
case may be, and deliver such document or instrument in accordance with this
Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, the Seller shall provide a notice on or prior to
the date that is thirty (30) days after the Closing Date to the franchisor or
the issuing financial institution, as applicable, of the transfer of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing Agreement, and
inform such parties that any notices to the Mortgagor's lender pursuant to such
franchise agreement or letter of credit should thereafter be forwarded to the
Master Servicer and, with respect to each franchise agreement, provide a
franchise comfort letter to the franchisor on or prior to the date that is
thirty (30) days after the Closing Date. After the Closing Date, with respect to
any letter of credit that has not yet been assigned to the Trust, upon the
written request of the Master Servicer or the applicable Primary Servicer, the
Seller will draw on such letter of credit as directed by the Master Servicer or
such Primary Servicer in such notice to the extent the Seller has the right to
do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to the 75th day
after the Closing Date, in accordance with the Primary Servicing Agreement, if
applicable.
The Servicing File shall include, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the Master Servicer and satisfy Seller's obligations under this
sub-paragraph. Each of the foregoing items shall be delivered by the Seller in
electronic form, to the extent such document is available in such form and such
form is reasonably acceptable to the Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement
Mortgage Loans and all distributions with respect thereto, and
the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect. Within 45 days after the Closing
Date, the Seller shall provide the Master Servicer or Primary Servicer, if
applicable, with any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of New York. The Seller has
the requisite power and authority and legal right to own the Mortgage
Loans and to transfer and convey the Mortgage Loans to the Purchaser and
has the requisite power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization or by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument,
other than pursuant to this Agreement, or (C) after giving effect to the
consents or taking of the actions contemplated in subsection (iii), any
law, rule, regulation, order, judgment, writ, injunction or decree of
any court or governmental authority having jurisdiction over the Seller
or its assets, except where in any of the instances contemplated by
clauses (B) or (C) above, any conflict, breach or default, or creation
or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions
contemplated hereby by the Seller or materially and adversely affect its
ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of [______],
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) contained in the Disclosure
Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (ii) (other than the
Memorandum) complies with the requirements of and contains all of the
applicable information required by Regulation AB (as defined in the
Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby that has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or that may be applicable to the Purchaser or its
assets.
(xiii) The Purchaser's 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, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or
its assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(xv) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required (and including the expiration of any grace or cure period),
is not properly executed or is defective on its face, or if there is a breach of
any of the representations and warranties required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case such defect or
breach, either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
party; provided that any breach of the representation and warranty contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the Master Servicer shall, and the Special Servicer may, request that
the Seller, not later than 90 days from the Seller's receipt of the notice of
such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code), but the Seller is diligently attempting to effect such correction
or cure, as certified by the Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is, at
the end of the initial 90-day period, a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the Master Servicer as to whether either of the conditions set forth above
has been satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause, or direct the Seller to
cause, to be delivered to the Master Servicer at the Seller's expense (i) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the Seller if the scope and cost of
the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of
each such Cross-Collateralized Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the steps
described elsewhere in this Section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the Seller for the
cure of the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling
and Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall be
required to notify the Seller of the discovery of the Material Document Defect
or Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the Special Servicer will be entitled: (i) with respect to a
determination that the Seller is or was obligated to repurchase, to collect a
Liquidation Fee, if due in accordance with the definition thereof, based upon
the full Purchase Price of the related Mortgage Loan or REO property, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that Seller is not or was not obligated to repurchase (or the Trust decides that
it will no longer pursue a claim against the Seller for repurchase), (A) to
collect a Liquidation Fee based upon the Liquidation Proceeds as received upon
the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) to
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amount to be paid from amounts in the Certificate
Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchaser shall
have suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of existence for the Seller from the Secretary
of State of New York dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under New York law and has
full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitutes a
default under, the organizational documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict, breach
or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation
of the transactions contemplated hereby by the Seller or materially and
adversely affect its ability to perform its obligations and duties
hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or
in any material impairment of the right or ability of the Seller to
carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally,
(3) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as
Exhibit 4.
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated [______].
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxxx Xxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxxx, with a copy to Xxxxxxxx Xxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
SUNTRUST BANK
By: ____________________________
Name:
Title:
XXXXXX XXXXXXX CAPITAL I INC.
By: ____________________________
Name:
Title:
EXHIBIT K-4
MORTGAGE LOAN PURCHASE AGREEMENT
(NCB, FSB LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
[______], between NCB, FSB (the "Seller"), and Xxxxxx Xxxxxxx Capital I Inc.
(the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of [______], between the Purchaser, as
depositor, [Xxxxx Fargo Bank, N.A.], as General Master Servicer, [LNR Partners,
Inc.], as General Special Servicer, [NCB, FSB, as NCB Master Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer] and [U.S. Bank National
Association], as Trustee, Paying Agent and Certificate Registrar. In exchange
for the Mortgage Loans and certain other mortgage loans (the "Other Mortgage
Loans") to be purchased by the Purchaser, the Trust will issue to the Depositor
pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The [Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-M and Class A-J] Certificates (the "Public Certificates")
will be sold by the Purchaser to [Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC, Natixis Securities North America Inc. (formerly IXIS
Securities North America Inc.), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and SunTrust Capital Markets, Inc.] (collectively, the
"Underwriters"), pursuant to an Underwriting Agreement, between the Purchaser
and the Underwriters, dated [______] (the "Underwriting Agreement"), and the
[Class X, Class X-Y, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class EI,
Class R-I, Class R-II and Class R-III] Certificates (collectively, the "Private
Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx & Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant to a
Certificate Purchase Agreement, between the Purchaser and the Initial Purchaser,
dated [______] (the "Certificate Purchase Agreement"). The Underwriters will
offer the Public Certificates for sale publicly pursuant to a Prospectus dated
[______], as supplemented by a Prospectus Supplement dated [______] (together,
the "Prospectus Supplement"), and the Initial Purchaser will offer the Private
Certificates (other than the [Class EI, Class R-I, Class R-II and Class R-III]
Certificates) for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum, dated
as of [______] (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis, the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule") annexed hereto
as Exhibit 1, as such schedule may be amended to reflect the actual Mortgage
Loans accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month
of [______]. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $[______]. The sale of the Mortgage Loans shall take place on
[______] or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The purchase price to be paid by the Purchaser for
the Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, with
respect to the Mortgage Loans originated or acquired by the Seller and subject
to defeasance, the Seller shall retain the right to designate and establish the
successor borrower and to purchase or cause the purchase on behalf of the
related borrower of the related defeasance collateral ("Seller Defeasance Rights
and Obligations"). In the event the General Master Servicer receives notice of a
defeasance request with respect to a Mortgage Loan originated or acquired by the
Seller and subject to defeasance, the General Master Servicer shall provide upon
receipt of such notice, written notice of such defeasance request to the Seller
or its assignee. Until such time as the Seller provides written notice to the
contrary, notice of a defeasance of a Mortgage Loan with Seller Defeasance
Rights and Obligations shall be delivered to the Seller pursuant to the notice
provisions of the Pooling and Servicing Agreement.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the consideration referred to in
Section 1 hereof and the satisfaction of the conditions specified in Sections 6
and 7 hereof, the Seller does hereby transfer, assign, set over and otherwise
convey to the Purchaser, without recourse, all the right, title and interest of
the Seller, with the understanding that a Servicing Rights Purchase Agreement,
dated [______], will be executed by the Seller and the General Master Servicer,
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to time
on or prior to the Closing Date, shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to or on behalf of the
Trustee, on behalf of the Purchaser, on or prior to the Closing Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage Loan and on
or prior to the fifth Business Day after the Closing Date, five limited powers
of attorney substantially in the form attached hereto as Exhibit 5 in favor of
the Trustee, the applicable Master Servicer and the applicable Special Servicer
to empower the Trustee, the applicable Master Servicer and, in the event of the
failure or incapacity of the Trustee and the applicable Master Servicer, the
applicable Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as described in the
Pooling and Servicing Agreement and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the applicable
Master Servicer and the applicable Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested by such
parties for purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the Seller's expense,
after the periods set forth above; provided, however, the Trustee shall not
submit such assignments for recording if the Seller produces evidence that it
has sent any such assignment for recording and certifies that the Seller is
awaiting its return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, the Seller shall deliver to or on
behalf of the Trustee each of the remaining documents or instruments specified
below (with such exceptions and additional time periods as are permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller acknowledges that the term "without recourse" does not modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage Files shall
be released from escrow upon closing of the sale of the Mortgage Loans and
payments of the purchase price therefor as contemplated hereby. The Mortgage
File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of U.S. Bank
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit and indemnity, with a copy of the Mortgage
Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed), or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 90th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate (as defined below) of
the Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (ii) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other material modification, consolidation and extension agreements, if any,
with evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "U.S. Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "U.S. Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ13," which assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the original of
each letter of credit, if any, constituting additional collateral for such
Mortgage Loan (other than letters of credit representing tenant security
deposits which have been collaterally assigned to the lender), which shall be
held by the applicable Primary Servicer (or the Master Servicer) on behalf of
the Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, any letter of credit held by the applicable Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) has agreed to assign the applicable letter of credit to the Trust or
at the direction of the Special Servicer to such party as the Special Servicer
may instruct, in each case, at the expense of the applicable Primary Servicer
(or Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement, if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor of the lender;
(q) With respect to hospitality properties, a copy of any
franchise agreement, franchise comfort letter and applicable assignment or
transfer documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and assignment of Assignment of Leases referred to in clauses (d), (e) and (f)
may be in the form of a single instrument assigning the Mortgage and the
Assignment of Leases to the extent permitted by applicable law. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording or filing of multiple assignments of mortgages,
assignments of leases (to the extent separate from the mortgages) and
assignments of UCC financing statements, the Seller shall execute, in accordance
with the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from the Seller to the
Purchaser and from the Purchaser to the Trustee on behalf of the
Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Trustee within such 90-day period, the Seller shall then deliver within 180 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
withheld so long as the Seller is, as certified in writing to the Trustee no
less often than monthly, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver and the Purchaser, the Trustee or the agents of either may submit or
cause to be submitted for recordation at the expense of the Seller, in the
appropriate public office for real property records, each assignment referred to
in clauses (d) and (f)(ii) above (with recording information in blank if such
information is not yet available). Within 15 days following the Closing Date,
the Seller shall deliver and the Purchaser, the Trustee or the agents of either
may submit or cause to be submitted for filing, at the expense of the Seller, in
the appropriate public office for Uniform Commercial Code financing statements,
the assignment referred to in clause (i) above. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Seller shall prepare a substitute therefor or
cure such defect, and the Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or file, as the
case may be, and deliver such document or instrument in accordance with this
Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement
and each Mortgage Loan secured by a Mortgaged Property with respect to which a
letter of credit is in place, the Seller shall provide a notice on or prior to
the date that is thirty (30) days after the Closing Date to the franchisor or
the issuing financial institution, as applicable, of the transfer of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing Agreement, and
inform such parties that any notices to the Mortgagor's lender pursuant to such
franchise agreement or letter of credit should thereafter be forwarded to the
Master Servicer and, with respect to each franchise agreement, provide a
franchise comfort letter to the franchisor on or prior to the date that is
thirty (30) days after the Closing Date. After the Closing Date, with respect to
any letter of credit that has not yet been assigned to the Trust, upon the
written request of the Master Servicer or the applicable Primary Servicer, the
Seller will draw on such letter of credit as directed by the Master Servicer or
such Primary Servicer in such notice to the extent the Seller has the right to
do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to the 75th day
after the Closing Date, in accordance with the Primary Servicing Agreement, if
applicable.
The Servicing File shall include, to the extent required to be
(and actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the Master Servicer and satisfy Seller's obligations under this
sub-paragraph. Each of the foregoing items shall be delivered by the Seller in
electronic form, to the extent such document is available in such form and such
form is reasonably acceptable to the Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and the other contents of the related Mortgage File shall be vested in
the Purchaser and its assigns, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller shall immediately vest in the Purchaser and its
assigns, and shall be delivered promptly by the Seller to or on behalf of either
the Trustee or the Master Servicer as set forth herein, subject to the
requirements of the Primary Servicing Agreement. The Seller's and Purchaser's
records shall reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans and related property to the Purchaser by the
Seller as provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title, and interest, whether now
owned or hereafter acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and
investment property consisting of, arising from or relating to
any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement
Mortgage Loans and all distributions with respect thereto, and
the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments, receipts, or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or Persons
holding for, the Purchaser or its designee, as applicable, for the purpose of
perfecting such security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. In such case, the Seller shall file all
filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection herewith, the
Purchaser shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section 2 on or
before the Closing Date is not so delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review. The Seller shall (i) deliver to the Purchaser on or before the Closing
Date a diskette acceptable to the Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver
to the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency to examine
and audit all books, records and files pertaining to the Mortgage Loans, the
Seller's underwriting procedures and the Seller's ability to perform or observe
all of the terms, covenants and conditions of this Agreement. Such examinations
and audits shall take place at one or more offices of the Seller during normal
business hours and shall not be conducted in a manner that is disruptive to the
Seller's normal business operations upon reasonable prior advance notice. In the
course of such examinations and audits, the Seller will make available to such
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency reasonably
adequate facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the Mortgage
Loans and the terms of this Agreement, and the Seller shall cooperate fully with
any such examination and audit in all material respects. On or prior to the
Closing Date, the Seller shall provide the Purchaser with all material
information regarding the Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to the Seller's financial condition, financial statements
as provided to the Purchaser or other developments affecting the Seller's
ability to consummate the transactions contemplated hereby or otherwise
affecting the Seller in any material respect. Within 45 days after the Closing
Date, the Seller shall provide the Master Servicer or Primary Servicer, if
applicable, with any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its assigns with
respect to each Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty) each of
the representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of New York. The Seller has
the requisite power and authority and legal right to own the Mortgage
Loans and to transfer and convey the Mortgage Loans to the Purchaser and
has the requisite power and authority to execute and deliver, engage in
the transactions contemplated by, and perform and observe the terms and
conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser, this
Agreement constitutes the valid, legal and binding agreement of the
Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws
relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law) or (D) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may be
required under state securities or blue sky laws, (2) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (3) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained and (4) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Seller under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any
term or provision of the Seller's articles of organization or by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the
terms of any such indenture, mortgage, contract or other instrument,
other than pursuant to this Agreement, or (C) after giving effect to the
consents or taking of the actions contemplated in subsection (iii), any
law, rule, regulation, order, judgment, writ, injunction or decree of
any court or governmental authority having jurisdiction over the Seller
or its assets, except where in any of the instances contemplated by
clauses (B) or (C) above, any conflict, breach or default, or creation
or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions
contemplated hereby by the Seller or materially and adversely affect its
ability to perform its obligations and duties hereunder or result in any
material adverse change in the business, operations, financial
condition, properties or assets of the Seller, or in any material
impairment of the right or ability of the Seller to carry on its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to materially and adversely affect the transfer
of the Mortgage Loans to the Purchaser or the execution or delivery by,
or enforceability against, the Seller of this Agreement or have an
effect on the financial condition of the Seller that would materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to this Agreement will effect a transfer by the Seller of all of its
right, title and interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information (as
defined in that certain indemnification agreement, dated as of [______],
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) contained in the Disclosure
Information (as defined in the Indemnification Agreement), the
Memorandum and the Prospectus Supplement (i) does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (ii) (other than the
Memorandum) complies with the requirements of and contains all of the
applicable information required by Regulation AB (as defined in the
Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby that has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the Purchaser
will violate the Purchaser's certificate of incorporation or by-laws or
constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which the
Purchaser is a party or that may be applicable to the Purchaser or its
assets.
(xiii) The Purchaser's 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, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or
its assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which could
reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of the Purchaser that would materially and adversely affect
the ability of the Purchaser to perform its obligation under this
Agreement.
(xv) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loans or consummation of any of the transactions
contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Trustee pursuant to Section 2 is not delivered
as and when required (and including the expiration of any grace or cure period),
is not properly executed or is defective on its face, or if there is a breach of
any of the representations and warranties required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case such defect or
breach, either (i) materially and adversely affects the interests of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A) the document
defect or breach materially and adversely affects the value of the Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated
Mortgage Loan (such a document defect described in the preceding clause (i) or
(ii), a "Material Document Defect" and such a breach described in the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such Material
Document Defect or Material Breach shall promptly notify, in writing, the other
party; provided that any breach of the representation and warranty contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax counsel to such
effect or (ii) a determination by the Internal Revenue Service that such
provision is not customary. Promptly (but in any event within three Business
Days) upon becoming aware of any such Material Document Defect or Material
Breach, the Master Servicer shall, and the Special Servicer may, request that
the Seller, not later than 90 days from the Seller's receipt of the notice of
such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code), but the Seller is diligently attempting to effect such correction
or cure, as certified by the Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is, at
the end of the initial 90-day period, a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary default or as
described in clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 of the Pooling and Servicing Agreement not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the Master Servicer as to whether either of the conditions set forth above
has been satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause, or direct the Seller to
cause, to be delivered to the Master Servicer at the Seller's expense (i) an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (2) above has been
satisfied, in each case at the expense of the Seller if the scope and cost of
the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of
each such Cross-Collateralized Loan will not result in an Adverse REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any of the following document defects shall be conclusively presumed materially
and adversely to affect the interests of Certificateholders in a Mortgage Loan
and be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the steps
described elsewhere in this Section, including the giving of notices to the
Rating Agencies and the parties hereto and making demand upon the Seller for the
cure of the Material Document Defect or repurchase or replacement of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, then provided
that (x) the period of time provided for the Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the applicable Special Servicer may, subject
to the Servicing Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling
and Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer or Special Servicer, as applicable, shall be
required to notify the Seller of the discovery of the Material Document Defect
or Material Breach and the Seller shall be required to follow the procedures set
forth in this Agreement to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
Seller fails to correct or cure the Material Document Defect or Material Breach
or purchase the REO Property, then the provisions above regarding notice of
offers related to such REO Property and the Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then, after the
expiration of any applicable appeal period, but in no event later than the
termination of the Trust pursuant to Section 9.30 of the Pooling and Servicing
Agreement, the Seller will be obligated to pay to the Trust the difference
between any Liquidation Proceeds received upon such liquidation (including those
arising from any sale to the Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO Property as described above, the Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the Special Servicer will be entitled: (i) with respect to a
determination that the Seller is or was obligated to repurchase, to collect a
Liquidation Fee, if due in accordance with the definition thereof, based upon
the full Purchase Price of the related Mortgage Loan or REO property, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that Seller is not or was not obligated to repurchase (or the Trust decides that
it will no longer pursue a claim against the Seller for repurchase), (A) to
collect a Liquidation Fee based upon the Liquidation Proceeds as received upon
the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) to
collect any accrued and unpaid Work-Out Fee, based on amounts that were
collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage
Loan, in each case with such amount to be paid from amounts in the Certificate
Account.
The obligations of the Seller set forth in this Section 5(b) to
cure a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense
incurred by the applicable Master Servicer or the Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and reasonably acceptable to the
Seller or the Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser
or its designee all documents required to be delivered to the Purchaser as of
the Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with,
and the Seller and the Purchaser shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date.
(f) The Seller shall have paid all fees and expenses payable by
it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned
ratings by each Rating Agency no lower than the ratings specified for each such
Class in the Memorandum and the Prospectus Supplement.
(h) No Underwriter shall have terminated the Underwriting
Agreement and the Initial Purchaser shall not have terminated the Certificate
Purchase Agreement, and neither the Underwriters nor the Initial Purchaser shall
have suspended, delayed or otherwise cancelled the Closing Date.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects on and as of the Closing Date with the same
force and effect as if made on the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date; and (ii) the Seller has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
organization and by-laws.
(d) A certificate of existence for the Seller from the Secretary
of State of New York dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under New York law and has
full corporate power and authority to enter into and perform its
obligations under this Agreement.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this
Agreement except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the Seller of any of
the transactions contemplated by the terms of this Agreement (A)
conflicts with or results in a breach or violation of, or constitutes a
default under, the organizational documents of the Seller, (B) to the
knowledge of such counsel, constitutes a default under any term or
provision of any material agreement, contract, instrument or indenture,
to which the Seller is a party or by which it or any of its assets is
bound or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant
to this Agreement, or (C) conflicts with or results in a breach or
violation of any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (B) or (C) above, any conflict, breach
or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation
of the transactions contemplated hereby by the Seller or materially and
adversely affect its ability to perform its obligations and duties
hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or
in any material impairment of the right or ability of the Seller to
carry on its business substantially as now conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (2)
other laws relating to or affecting the rights of creditors generally,
(3) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Delaware and the State of New York, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may
request in connection with the sale of the Mortgage Loans by the Seller to the
Purchaser or the Seller's execution and delivery of, or performance under, this
Agreement.
(h) A letter from Deloitte & Touche LLP, certified public
accountants, dated the date hereof, to the effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Memorandum and the Prospectus Supplement agrees with the records of the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as
Exhibit 4.
Section 8. Costs. The Seller shall pay the Purchaser the costs
and expenses as agreed upon by the Seller and the Purchaser in a separate Letter
of Understanding dated [______].
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Trustee any disclosure information
relating to any event specifically related to the Seller reasonably determined
in good faith by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K by the Trust (in formatting reasonably appropriate for inclusion in
such form), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above-referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust as to that fiscal year in accordance with Section 13.8 of
the Pooling and Servicing Agreement or the reporting requirements with respect
to the Trust under the Securities Exchange Act of 1934, as amended, have
otherwise been automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 10. Notices. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxxx Xxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxxx, with a copy to Xxxxxxxx Xxxxx.
Section 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
that is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the Purchaser each
agree to execute and deliver such instruments and take such actions as the other
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 13. Survival. Each party hereto agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to be
relied upon by the other party, notwithstanding any investigation heretofore or
hereafter made by the other party or on its behalf, and that the
representations, warranties and agreements made by such other party herein or in
any such certificate or other instrument shall survive the delivery of and
payment for the Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement.
Section 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the Purchaser and their respective successors, legal representatives, and
permitted assigns, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the Purchaser. No owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor or permitted assigns because of such ownership.
Section 16. Miscellaneous. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof. The
rights and obligations of the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to the entire business of the Seller
shall be the successor to the Seller hereunder.
Section 17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof (other than the Letter of Understanding, the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
NCB, FSB
By: ____________________________
Name:
Title:
XXXXXX XXXXXXX CAPITAL I INC.
By: ____________________________
Name:
Title:
EXHIBIT L
[Reserved]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDERS REPORT
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
U.S. Bank Corporate Trust Services
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Trustee's Report to Certificateholders
Table of Contents
Report Sections Preparer Page Number
--------------- -------- -----------
Distribution Date Statement Trustee 1-5
Loan Schedule Trustee 6
Loan Portfolio Stratifications Trustee 7-8
REO Status Report Servicer 9
Historical Loan Modification Servicer 10
Servicer Watchlist Servicer 11
Delinquent Loan Status Report Servicer 12
Historical Liquidation Loss Report Trustee 13
Historical Bond / Collateral Realized Loss Reconciliation Report Trustee 14
Interest Shortfall Reconciliation Trustee 15
Comparative Financial Status Report Servicer 16
Loan Level Reserve/ LOC Report Servicer 17
Reconciliation of Funds Servicer 18
Additional Report/File
----------------------
CSSA Periodic Loan Update File Servicer Delivery Through Web Site
Operating Statement Analysis Servicer Upon Request
NOI Adjustment Worksheet Servicer Upon Request
US Bank Information Delivery Vehicles
-------------------------------------
Web Site: xxxxx://xxxxxxxxxxxxxxxxxxxxxx.xxxxxx.xxx
For other information delivery requests: xx.xxxxxxxxxxx.xxxxxxxx@xxxxxx.xxx
Deal-Specific Contacts
----------------------
Account Officer (trustee and paying agent questions): Xxxxx Xxxxx (000) 000-0000
Bond Analyst (analytics and collateral questions): Xxxx Xxx (000) 000-0000
Servicer Xxxxx Fargo Bank, N.A.
NCB, FSB with respect to the residential cooperative loans only
Special Servicer LNR Partners, Inc.
National Consumer Cooperative Bank with respect to the residential cooperative loans only
Rating Agency Contacts
----------------------
Fitch, Inc. Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
(000) 000-0000 (000) 000-0000
This report has been prepared by, or is based on information furnished to U.S.
Bank Corporate Trust Services ("U.S. Bank") by, one or more third parties (e.g.
Servicers, Master Servicer, etc.), and U.S. Bank has not independently verified
information received from or prepared by any such third party. U.S. Bank shall
not and does not undertake responsibility for the accuracy, completeness, or
sufficiency of this report or the information contained herein for any purpose,
and U.S. Bank makes no representations or warranties with respect thereto. The
information in this report is presented here with the approval of the Issuer
solely as a convenience for the user, and should not be relied upon without
further investigation by any user contemplating an investment decision with
respect to the related securities.
Page 1 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
Trustee's Report to Certificateholders
Payment Summary
------------------------------------------------------------------------------------------------------------------------------------
Pass-Thru Original Beginning Principal Interest Prepayment Realized Total Ending
Class CUSIP Rate Balance Balance Distribution Distribution Premium Loss Distribution Balance
------------------------------------------------------------------------------------------------------------------------------------
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
* Based on a Notional Balance TOTALS 0.00 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------------------------
Beginning Principal Interest Prepayment Realized Ending
Class CUSIP Factor Distribution Distribution Premium Loss Cert. Factor
--------------------------------------------------------------------------------------------------------------------------------
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------------------------
Page 2 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
Trustee's Report to Certificateholders
Principal Detail
------------------------------------------------------------------------------------------------------------------------------------
Beginning Scheduled Unscheduled Realized Total Ending Cumulative Cumulative
Class Balance Principal Principal Loss Principal Balance Realized Losses Appraisal Reduction
------------------------------------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
TOTALS 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Interest Detail
------------------------------------------------------------------------------------------------------------------------------------
Accrued Net Prepayment Interest Current Interest Prepayment Total Interest Cumulative Unpaid
Class Certificate Interest Interest Shortfall Adjustment Shortfalls Premiums Distr. Amount Interest Shortfall
------------------------------------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
TOTALS 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Page 3 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
Trustee's Report to Certificateholders
Mortgage Loan Activity for related Payment Date:
-------------------------------------------------------------------------------------------------------------
Beginning Ending Realized Ending
# of Agg Sched Current Available Agg Sched Loss Agg Actual
Loans Principal Principal Realized Interest Distribution Principal Since Principal
Remaining Balance Remittance Loss Remittance Amt Balance Cutoff Balance
-------------------------------------------------------------------------------------------------------------
0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-------------------------------------------------------------------------------------------------------------
Aggregate Delinquency information for related Payment Date:
-------------------------------------------------------------------------------------------
Current One Month Two Months 3 Months + Bankruptcy Foreclosures REO
-------------------------------------------------------------------------------------------------------------
# of Loans 0 0 0 0 0 0 0
Agg Prin Balance 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-------------------------------------------------------------------------------------------------------------
Appraisal Reduction Information:
--------------------------------------------------------------------------------
SPB of Appraised Cumulative Most Recent
Loan # Apr Red Loan Value ASER Amount App. Red. Date
--------------------------------------------------------------------------------
0 0.00 0.00 0.00 0.00
0 0.00 0.00 0.00 0.00
0 0.00 0.00 0.00 0.00
0 0.00 0.00 0.00 0.00
0 0.00 0.00 0.00 0.00
--------------------------------------------------------------------------------
REO Property with Final Recovery Determination:
--------------------------------------------------------------------------------
Mortgage Basis for Final All Proceeds Portion Proceeds Amount of
Loan # Recovery Determ Received to Certificates Realized Loss
--------------------------------------------------------------------------------
0 0.00 0.00 0.00 0.00
0 0.00 0.00 0.00 0.00
--------------------------------------------------------------------------------
Twelve Month Summary of Prepayments and Penalties:
--------------------------------------------------
Month/Year Prepayments Penalties
---------- ----------- ---------
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
--------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Fees Primary Servicer 0.00
Master Servicer 0.00
Trustee 0.00
Special Servicer 0.00
Aggregate Amount of:
Trust Fund Expenses 0.00
Additional Trust Fund Expenses 0.00
Other Expenses 0.00
Advances Current Net Advances Cumulative Net Advances
Principal 0.00 0.00
Interest 0.00 0.00
Interest on Advances 0.00
Significant Obligor's net operating income 0.00
--------------------------------------------------------------------------------
Ratings Detail
--------------------------------------------------------------------------------
Original Current Fitch Original Current S&P
Class Fitch 4/16/2007 S&P 4/16/2007
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page 4 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
Trustee's Report to Certificateholders
Historical Information (Rolling 24 months)
One Month Delinquent Two Months Delinquent Three Plus Delinquent Pre-Payments Mod./REO/Workouts Liquidations
Date Count Balance Count Balance Count Balance Count Balance Count Balance Count Balance
------------------------------------------------------------------------------------------------------------------------------------
20070416 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00 0 0.00
Subordination Levels
------------------------------------
Class Current Original
------------------------------------
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
0.00% 0.00%
Speed History
------------------------------------
CPR *
%
------------------------------------
1 month 0.00%
3 month 0.00%
6 month 0.00%
12 month 0.00%
Life 0.00%
------------------------------------
* Principal received within 1 month of maturity is not considered prepayment in
the calculation of CPR.
Page 5 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
Loan Level Detail
------------------------------------------------------------------------------------------------------------------------------------
Offer Loan Property Transfer Maturity Neg Am End Note Sched Prepay/ Prepay Paid Thru Prepmt Loan
Loan# Number Type Date State Date (Y/N) Sched Bal Rate P&I Liquid/adj Date Date Premium Status
------------------------------------------------------------------------------------------------------------------------------------
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
0 0 0.00 0.000 0.00 0.00 0.00 0
------------------------------------------------------------------------------------------------------------------------------------
totals 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
If state field is blank loan has properties in multiple states.
--------------------------------------------------------------------------------
Loan Status:
A= Payment not received but still in grace period, B= Late payment but less than
1mo., 0= Current, 1= 1 mo. delinquent, 2= 2mo. delinquent, 3= Three or more mo.
delinquent 4= Assumed scheduled payment (performing matured balloon),
7= Foreclosure, 9= REO
--------------------------------------------------------------------------------
Page 6 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
Distribution of Current Scheduled Principal Balances
--------------------------------------------------------------------------------
Current
Scheduled # of Aggregate % Tot Weighted Averages
Principal Mtg Sched Prin Sched Mnths Mort
Balance Loans Balance Bal DSCR* to Mat** Rate
-------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Remaining Stated Term All Loans
--------------------------------------------------------------------------------
Remaining
Stated # of Aggregate % Tot Weighted Averages
Term Mtg Sched Prin Sched Mnths Mort
(Months) Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution by State
--------------------------------------------------------------------------------
# of Aggregate % Tot Weighted Averages
Mtg Sched Prin Sched Mnths Mort
States Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Current Mortgage Interest Rates
--------------------------------------------------------------------------------
Current
Mortgage # of Aggregate % Tot Weighted Averages
Interest Mtg Sched Prin Sched Mnths Mort
Rate Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Property Type
--------------------------------------------------------------------------------
# of Aggregate % Tot Weighted Averages
Property Mtg Sched Prin Sched Mnths Mort
Types Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Seasoning
--------------------------------------------------------------------------------
# of Aggregate % Tot Weighted Averages
Seasoning Mtg Sched Prin Sched Mnths Mort
(months) Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Page 7 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Payment Date: April 16, 2007
Record Date: March 29, 2007
Distribution of Amortization Type
--------------------------------------------------------------------------------
# of Aggregate % Tot Weighted Averages
Amortization Mtg Sched Prin Sched Mnths Mort
Type Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Most Recent Debt Service Coverage Ratio
--------------------------------------------------------------------------------
# of Aggregate % Tot Weighted Averages
Mtg Sched Prin Sched Mnths Mort
DSCR Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Original Term to Stated Maturity
--------------------------------------------------------------------------------
Original # of Aggregate % Tot Weighted Averages
Term to Mtg Sched Prin Sched Mnths Mort
Maturity Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Maturity Date Extensions (Since Deal Origination)
--------------------------------------------------------------------------------
# of Aggregate % Tot Weighted Averages
Months Mtg Sched Prin Sched Mnths Mort
Extended Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Loan to Value Ratio
--------------------------------------------------------------------------------
Most # of Aggregate % Tot Weighted Averages
Recent Mtg Sched Prin Sched Mnths Mort
LTV Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Distribution of Original Debt Service Coverage Ratio
--------------------------------------------------------------------------------
# of Aggregate % Tot Weighted Averages
Mtg Sched Prin Sched Mnths Mort
DSCR Loans Balance Bal DSCR* to Mat** Rate
--------------------------------------------------------------------------------
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Total 0 0.00 0.00% 0.00 0.00 0.000
--------------------------------------------------------------------------------
Page 8 of 18
CMSA Investor Reporting Package
REO Status Report
for Portfolio MS 2007-IQ13 as of 3/29/2007
(Property Level Report)
Allocated
Ending Other
Sq Ft Paid Scheduled Total P&I Expense Total T&I
Property Property Property or Thru Loan Advance Advance Advances
ID Name Type City State Units Date Amount Outstanding Outstanding Outstanding
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Loss
Most Appraisal Using
Current LTM LTM Recent BPO or 90%
Property Total Monthly Maturity NOI DSCR Valuation Valuation Internal Appr.
ID Exposure P&I Date Date (NOI) Date Source Value or BPO
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------
Date Asset
REO Expected
Property ARA Transfer Acquisition to be Resolved
ID Amount Date Date or Foreclosed Comments
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
Bxxx.xls 3/15/2007 4:08 PM Page 9 of 18
CMSA Investor Reporting Package
Historical Loan Modification and Corrected Mortgage Loan Report
for Xxxxxxxxx XX 0000-XX00 as of 3/29/2007
(Loan Level Report)
-------------------------------------------------------------------------------------------------------------------------------
Most Balance
Recent Effective Balance at the # Mths
Master Date When Sent Effective for
Prospectus Type of Servicer of to Special date of Old Rate New Old
ID City State Modification Return Date Modification Servicer Modification Rate Change Rate P&I
-------------------------------------------------------------------------------------------------------------------------------
Loan Modifications:
Corrected Mortgage Loans:
-------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
(2) Ext.
Total # Future Interest Loss
Months for (1) Realized to
Prospectus New Old New Change of Loss to Trust $ (Rate
ID P&I Maturity Maturity Mod Trust Reduction) Comment
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Bxxx.xls 3/15/2007 4:08 PM Page 10 of 18
CMSA Investor Reporting Package
Servicer Watch List
for Xxxxxxxxx XX 0000-XX00 as of 3/29/2007
(Loan Level Report)
-----------------------------------------------------------------------------------------------------------------------------
Ending Preceding Preceding Most
Date Scheduled Paid Fiscal Fiscal Year Recent
Prospectus Property Property Added to Loan Thru Maturity Year Financial As DSCR
Loan ID Name Type City State Watchlist Balance Date Date DSCR NOI of Date NOI
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------
Comment/
Most Recent Most Recent Action
Prospectus Financial as Financial as To Be
Loan ID of Start Date of End Date Taken
----------------------------------------------------
----------------------------------------------------
Bxxx.xls 3/15/2007 4:08 PM Page 11 of 18
CMSA Investor Reporting Package
Delinquent Loan Status Report
for Portfolio MS 2007-IQ13 as of 3/29/2007
(Loan Level Report)
--------------------------------------------------------------------------------------------------------------------------------
Ending Total Other Cumulative
Loan Sq Ft Paid Scheduled P&I Expense Total T&I Unpaid
Prospectus Property Property or Thru Loan Advances Advance Advances Advance
ID Name Type City State Units Date Balance Outstanding Outstanding Outstanding Interest
--------------------------------------------------------------------------------------------------------------------------------
Loans in Foreclosure and Not REO
90+ Days Delinquent
60+ Days Delinquent
30+ Days Delinquent
Current and at Special Servicer
Matured Performing Loans
Matured Non-Performing Loans
----------------------------------------------------------------------------------------------------------------------------------
Appraisal Loss
Loan Current Current LTM LTM BPO or Using
Prospectus Total Monthly Interest Maturity NOI LTM DSCR Valuation Internal 90% Appr. ARA Transfer
ID Exposure P&I Rate Date Date NOI (NOI) Date Value or BPO Amount Date
----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------
Date Asset
Loan Expected to be
Prospectus Resolved or Workout
ID Foreclosed Strategy Comments
------------------------------------------------
Bxxx.xls 3/15/2007 4:08 PM Page 12 of 18
HISTORICAL LIQUIDATION LOSS
As of: April 16, 2007
(Loan Level Report)
-----------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9
-----------------------------------------------------------------------------------------------------------------------------
L46, D18 or
L5, D5 L4, D4, S4 L6 L75, D26 L114, D43 L45, X00 X000xX000xX000xX000 L45 less L46 L47, D19
-----------------------------------------------------------------------------------------------------------------------------
Net Net
Current Proceeds Proceeds
Beginning Most Liquidation Received Available Realized
Distribution Prospectus Scheduled Recent Sales on Liquidation for Loss to
Date Loan ID Balance Value Price Liquidation Expense Distribution Trust
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------
10 11 12 13
--------------------------------------------------------
L47 less L121 or
X000, X00 X000, X00 X000, X00 X00 less D45
--------------------------------------------------------
Date of Minor Loss to
Current Current Adjustment Loan with
Period Period Passed Cumulative
Adjustment Adjustment to Trust - Adjustment
to Trust to Trust Cumulative to Trust
--------------------------------------------------------
--------------------------------------------------------
Page 13 of 18
CMSA Investor Reporting Package
HISTORICAL BOND/COLLATERAL REALIZED LOSS RECONCILIATION
As of April 16, 2007
(Loan Level Report)
----------------------- Adjustments ---------------------
------------------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8
------------------------------------------------------------------------------------------------------------------------------------
Prior Amounts Covered Modification
Current Beginning Aggregate Realized by Interest Adjustments/
Scheduled Balance Realized Loss Overcollateralization (Shortages)/ Appraisal
Distribution Prospectus of the Loan at Loss on Applied to and other Excesses applied Reduction
Date Loan ID Liquidation Loans Certificates Credit Support to Realized Losses Adjustment
------------------------------------------------------------------------------------------------------------------------------------
A B C D
- - -
-
-
-
-
-
-
-
-
-
-
-
------------------------------------------------------------------------------------------------------------------------------------
Total -
---- Adjustments ----
---------------------------------------------------------------------------------------
1 9 10 11 12
---------------------------------------------------------------------------------------
Additional Realized (Recoveries)/
(Recoveries) Loss Applied Recoveries Realized Loss
Expenses to of Realized Applied to
Distribution applied to Certificates Losses Paid Certificate
Date Realized Losses to Date* as Cash Interest
---------------------------------------------------------------------------------------
E =A-B-C-D+E
-
---------------------------------------------------------------------------------------
- -
* In the initial period, the Realized Loss Applied to Certificates to Date will
equal Aggregate Realized Loss on Loans - B - C - D + E instead of A - B - C - D
+E.
Page 14 of 18
INTEREST SHORTFALL RECONCILIATION
Mortgage Loan Detail Expense
As of: April 16, 2007
------------------------------------------------------------------------------------------------------------------------------
Special Servicing Fees
------------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9
------------------------------------------------------------------------------------------------------------------------------
L4, D4, S4 S44 L7 L106, D58 L109, D72 L108, X00 X00 L31
------------------------------------------------------------------------------------------------------------------------------
Scheduled Current Special Servicing Most Recent Prepayment Non -
Prospectus Principal Ending Fee Amount Liquidation Workout Net Interest Recoverable
Loan Balance at Scheduled Plus Fee Fee ASER Excess/ (scheduled
ID Contribution Balance Adjustments Amount Amount Amount (Shortfall) Interest)
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------
Total Interest shortfall hitting the Trust 0.00
--------------------------------------------------------------------------------------------------------------------
Reimbursement of Advances to Servicer
--------------------------------------------------------------------------------------------------------------------
1 10 11 12 13 14 15 16
--------------------------------------------------------------------------------------------------------------------
L4, D4, S4 L107 L118 L122 L123 L124
--------------------------------------------------------------------------------------------------------------------
Reimbursed Modified Additional
Prospectus Interest Interest Rate Trust Other
Loan on (Reduction)/ Fund Left to (Shortfalls)/
ID Advances Excess Expense Current Month Reimburse Servicer Refunds Comments
-------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
0.00 0.00 0.00 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------------------------------
Page 15 of 18
CMSA Investor Reporting Package
Comparative Financial Status Report
for Portfolo MS 2007-IQ13 as of 3/29/2007
(Property Level Report)
Original Underwriting
Information
Base Year
------------------------------------------------------------------------------------------------------------------------------------
Last Property Property Current Paid
Property Inspection Condition Allocated Loan Through Financial DSCR
ID City State Date Code Amount Date as of Date % Occ Total Revenue $ NOI (NOI)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total
2nd Preceding Annual Operating Preceding Annual Operating
Information Information
as of as of
12/31/2003 12/31/2004
-------------------------------------------------------------------------------------------------------------------------------
Property Financial Financial as
ID as of Date % Occ Total Revenue $ NOI DSCR (NOI) of Date % Occ Total Revenue $ NOI DSCR (NOI)
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Total
Most Recent Financial Net Change
Information
Actual Preceding & Basis
----------------------------------------------------------------------------------------------------------------
Property FS Start FS End Occ As of % Total
ID Date Date Date % Occ Total Revenue $ NOI DSCR (NOI) % Occ Revenue DSCR
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Total
Bxxx.xls 3/15/2007 4:08 PM Page 16 of 18
CMSA Investor Reporting Package
Loan Reserve/LOC Report
for Xxxxxxxxx XX 0000-XX00 as of 3/29/2007
(Loan Level Report)
------------------------------------------------------------------------------------------------------------------------------------
Current
Paid Ending Tax Insurance Reserve Beginning
Prospectus Property Through Scheduled Reserve Reserve Account Balance at Reserve Reserve
Loan ID Loan ID Name Date Balance Balance Balance Type Contribution Balance Deposits
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Portfolio
Total
------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Ending LOC
Reserve Reserve Expiration
Loan ID Disbursement Balance Date Comments
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Portfolio
Total
-------------------------------------------------------------------------------
Bxxx.xls 3/15/2007 4:08 PM Page 17 of 18
[US BANK LOGO]
XXXXXX XXXXXXX CAPITAL I INC.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ13
Funds From Collateral:
Interest
Scheduled Interest Amount: 0.00
Less Interest Adjustments:
Neg Am/Deferred Interest Amount: 0.00
Prepayment Interest Excess (Shortfall): 0.00
Other Interest Adjustment: 0.00
Total Interest Adjustments: 0.00
Less Scheduled Fees:
Servicing Fee/Primary Servicing Fees: 0.00
Trustee Fee: 0.00
Total Scheduled Fees: 0.00
Less Unscheduled Expenses or Shortfalls:
Reimbursed Interest on Advances: 0.00
Special Servicing Fees:
Special Servicer Workout Fee: 0.00
Special Servicer Liquidation Fee Amount: 0.00
Special Servicer Fee Amount plus Adjustments: 0.00
Total Special Servicer Fees Collected: 0.00
Most Recent ASER Amount: 0.00
Other Expenses or Shortfalls: 0.00
Total Unscheduled Expenses or Shortfalls: 0.00
Net Interest Amount: 0.00
Principal:
Scheduled Principal Amount: 0.00
Unscheduled Principal Collections: 0.00
Other Principal Adjustments: 0.00
Total Principal Amount: 0.00
Prepayment Penalties/Yield Maintenance Charges: 0.00
Total Funds Available for Distribution: 0.00
Funds to Bonds:
Interest Distribution: 0.00
Principal Distribution: 0.00
Prepayment Penalties/Yield Maintenance Charges: 0.00
Total Funds to Bonds: 0.00
Net Difference Bonds - Collateral 0.00
Note: Specific definition and allocations of the fees may vary based on specific
deal servicing agreements.
EXHIBIT N
[Reserved]
EXHIBIT O
[Reserved]
EXHIBIT P
[Reserved]
EXHIBIT Q
[Reserved]
EXHIBIT R
[Reserved]
EXHIBIT S-1A
FORM OF POWER OF ATTORNEY TO GENERAL MASTER SERVICER
RECORDING REQUESTED BY:
Xxxxx Fargo Bank, N.A.
AND WHEN RECORDED MAIL TO:
Xxxxx Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Commercial Mortgage Servicing - Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint XXXXX FARGO BANK,
N.A., as general master servicer under the Pooling and Servicing Agreement (the
"General Master Servicer"), as its true and lawful attorney-in-fact for it and
in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Xxxxx Fargo Bank, N.A. to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by Xxxxx Fargo Bank, N.A. of its duties as General Master Servicer
under the Pooling and Servicing Agreement, giving and granting unto Xxxxx Fargo
Bank, N.A. full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that Xxxxx Fargo Bank, N.A. shall
lawfully do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the General
Master Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the General Master
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 29th day of March 29, 2007.
U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13
By:
------------------------------------
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
--------------- -------------------------------------
Date Name and Title of Officer
(i.e., Your Name, Notary Public)
personally appeared
-------------------------------------------------------------
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
---------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-1B
FORM OF POWER OF ATTORNEY TO NCB MASTER SERVICER
RECORDING REQUESTED BY:
NCB, FSB
AND WHEN RECORDED MAIL TO:
NCB, FSB
0000 Xxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X., 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint NCB, FSB, as NCB
master servicer under the Pooling and Servicing Agreement (the "NCB Master
Servicer"), as its true and lawful attorney-in-fact for it and in its name,
place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable NCB, FSB to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by NCB, FSB
of its duties as NCB Master Servicer under the Pooling and Servicing Agreement,
giving and granting unto NCB, FSB full power and authority to do and perform any
and every act necessary, requisite, or proper in connection with the foregoing
and hereby ratifying, approving or confirming all that NCB, FSB shall lawfully
do or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the NCB
Master Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the NCB Master
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 29th day of March, 2007.
U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13
By:
------------------------------------
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
--------------- -------------------------------------
Date Name and Title of Officer
(i.e., Your Name, Notary Public)
personally appeared
-------------------------------------------------------------
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2A
FORM OF POWER OF ATTORNEY TO GENERAL SPECIAL SERVICER
RECORDING REQUESTED BY:
LNR Partners, Inc.
AND WHEN RECORDED MAIL TO:
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint LNR PARTNERS, INC., as
general special servicer under the Pooling and Servicing Agreement (the "General
Special Servicer"), as its true and lawful attorney-in-fact for it and in its
name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable LNR Partners, Inc. to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by LNR Partners, Inc. of its duties as General Special Servicer
under the Pooling and Servicing Agreement, giving and granting unto LNR
Partners, Inc. full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that LNR Partners, Inc. shall lawfully do
or cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the General
Special Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the General Special
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 29th day of March, 2007.
U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13
By:
------------------------------------
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
--------------- -------------------------------------
Date Name and Title of Officer
(i.e., Your Name, Notary Public)
personally appeared
-------------------------------------------------------------
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2B
FORM OF POWER OF ATTORNEY TO CO-OP SPECIAL SERVICER
RECORDING REQUESTED BY:
National Consumer Cooperative Bank
AND WHEN RECORDED MAIL TO:
National Consumer Cooperative Bank
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxx Xxxxx, Real Estate Master Servicing
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13 (the "Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint NATIONAL CONSUMER
COOPERATIVE BANK ("NCCB"), as co-op special servicer under the Pooling and
Servicing Agreement (the "Co-op Special Servicer"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable NCCB to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by NCCB of
its duties as Co-op Special Servicer under the Pooling and Servicing Agreement,
giving and granting unto NCCB full power and authority to do and perform any and
every act necessary, requisite, or proper in connection with the foregoing and
hereby ratifying, approving or confirming all that NCCB shall lawfully do or
cause to be done by virtue hereof.
Notwithstanding anything contained herein to the contrary, the Co-op
Special Servicer shall not, without the Trustee's written consent: (i) initiate
any action, suit or proceeding directly relating to the servicing of a Mortgage
Loan solely under the Trustee's name without indicating the Co-op Special
Servicer's representative capacity, (ii) initiate any other action, suit or
proceeding not directly relating to the servicing of a Mortgage Loan (including
but not limited to actions, suits or proceedings against Certificateholders, or
against the Depositor or a Seller (each as defined in the Pooling and Servicing
Agreement) for breaches of representations and warranties) solely under the
Trustee's name, (iii) engage counsel to represent the Trustee in any action,
suit or proceeding not directly relating to the servicing of a Mortgage Loan
(including but not limited to actions, suits or proceedings against
Certificateholders, or against the Depositor or a Seller for breaches of
representations and warranties), or (iv) prepare, execute or deliver any
government filings, forms, permits, registrations or other documents or take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this 29th day of March, 2007.
U.S. BANK NATIONAL ASSOCIATION, as
trustee for Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13
By:
------------------------------------
Name:
Title:
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On before me,
--------------- -------------------------------------
Date Name and Title of Officer
(i.e., Your Name, Notary Public)
personally appeared
-------------------------------------------------------------
Name(s) of Document Signer(s)
--------------------------------------------------------------------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT T
[Reserved]
EXHIBIT U
[Reserved]
EXHIBIT V
[Reserved]
EXHIBIT W
[Reserved]
EXHIBIT X
[Reserved]
EXHIBIT Y
INVESTOR CERTIFICATION
Date:
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ13
In accordance with the Pooling and Servicing Agreement, dated as of March
1, 2007 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I Inc., as
Depositor, Xxxxx Fargo Bank, N.A., as General Master Servicer, NCB, FSB, as NCB
Master Servicer, LNR Partners, Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer and U.S. Bank National
Association, as Trustee, Paying Agent and Certificate Registrar (the
"Trustee")with respect to the above referenced certificates (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
___ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet website
containing certain information (the "Information") and/or is requesting the
information identified on the schedule attached hereto (also, the
"information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of the
Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making an evaluation in connection with purchasing the related
Certificates, from its accountants and attorneys, and otherwise from such
governmental or banking authorities or agencies to which the undersigned is
subject), and such Information, will not, without the prior written consent
of the Paying Agent, be otherwise disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representative") in any manner whatsoever, in whole or
in part.
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.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Paying Agent and the Trust Fund for any loss, liability or expense incurred
thereby with respect to any such breach by the undersigned or any its
Representative.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto 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.
------------------------------------------
Beneficial Owner or Prospective Purchaser
By:
---------------------------------------
Title:
---------------------------------------
Company:
---------------------------------------
Phone:
---------------------------------------
EXHIBIT Z
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans having balance of (a) $20,000,000 or less, and (b) less than or equal
to 5% of Aggregate Certificate Balance, whichever is less
To: [Address]
Attn:
From: _____________________________________, in its capacity
as Master Servicer (the "Servicer") under the Pooling and Servicing
Agreement dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among the Servicer, U.S. Bank National Association, as
Trustee, and others.
Date: _________, 20___
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ13
----------------------------------------------------------------------
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 Servicer under the Pooling and Servicing Agreement, we hereby:
1. 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 payments scheduled to be due in
respect of the entire Principal Balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the Principal Balance of the Mortgage Loan
that represents ___% of the entire Principal Balance of the Mortgage
Loan and, under the Mortgage, has an allocated loan amount of
$____________ or _______% of the entire Principal Balance;
2. CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT TO THOSE
EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON EXHIBIT A HERETO, WHICH
EXCEPTIONS THE SERVICER HAS DETERMINED, CONSISTENT WITH THE SERVICING
STANDARD, WILL HAVE NO MATERIAL ADVERSE EFFECT ON THE MORTGAGE LOAN OR
THE DEFEASANCE TRANSACTION:
A. THE MORTGAGE LOAN DOCUMENTS PERMIT THE DEFEASANCE, AND THE
TERMS AND CONDITIONS FOR DEFEASANCE SPECIFIED THEREIN WERE SATISFIED
IN ALL MATERIAL RESPECTS IN COMPLETING THE DEFEASANCE.
B. THE DEFEASANCE WAS CONSUMMATED ON __________, 20__.
C. THE DEFEASANCE COLLATERAL CONSISTS OF SECURITIES THAT (I)
CONSTITUTE "GOVERNMENT SECURITIES" AS DEFINED IN SECTION 2(A)(16) OF
THE INVESTMENT COMPANY ACT OF 1940 AS AMENDED (15 U.S.C. 80A-1), (II)
ARE LISTED AS "QUALIFIED INVESTMENTS FOR `AAA' FINANCINGS" UNDER
PARAGRAPHS 1, 2 OR 3 OF "CASH FLOW APPROACH" IN STANDARD & POOR'S
PUBLIC FINANCE CRITERIA 2000, AS AMENDED TO THE DATE OF THE
DEFEASANCE, (III) ARE RATED `AAA' BY STANDARD & POOR'S, (IV) IF THEY
INCLUDE A PRINCIPAL OBLIGATION, THE PRINCIPAL DUE AT MATURITY CANNOT
VARY OR CHANGE, AND (V) ARE NOT SUBJECT TO PREPAYMENT, CALL OR EARLY
REDEMPTION. SUCH SECURITIES HAVE THE CHARACTERISTICS SET FORTH BELOW:
CUSIP RATE MAT PAY DATES ISSUED
D. THE SERVICER RECEIVED AN OPINION OF COUNSEL (FROM COUNSEL
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD) THAT
THE DEFEASANCE WILL NOT RESULT IN AN ADVERSE REMIC EVENT.
E. THE SERVICER DETERMINED THAT THE DEFEASANCE COLLATERAL WILL BE
OWNED BY AN ENTITY (THE "DEFEASANCE OBLIGOR") AS TO WHICH ONE OF THE
STATEMENTS CHECKED BELOW IS TRUE:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and after the defeasance
owns no assets other than the defeasance collateral and real property
securing Mortgage Loans included in the pool.
____ the related Mortgagor designated a Single-Purpose Entity (as
defined in the S&P Criteria) to own the defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit of the
Trust to own the defeasance collateral.
F. THE SERVICER RECEIVED A BROKER OR SIMILAR CONFIRMATION OF THE
CREDIT, OR THE ACCOUNTANT'S LETTER DESCRIBED BELOW CONTAINED
STATEMENTS THAT IT REVIEWED A BROKER OR SIMILAR CONFIRMATION OF THE
CREDIT, OF THE DEFEASANCE COLLATERAL TO AN ELIGIBLE ACCOUNT (AS
DEFINED IN THE S&P CRITERIA) IN THE NAME OF THE DEFEASANCE OBLIGOR,
WHICH ACCOUNT IS MAINTAINED AS A SECURITIES ACCOUNT BY THE TRUSTEE
ACTING AS A SECURITIES INTERMEDIARY.
G. AS SECURITIES INTERMEDIARY, TRUSTEE IS OBLIGATED TO MAKE THE
SCHEDULED PAYMENTS ON THE MORTGAGE LOAN FROM THE PROCEEDS OF THE
DEFEASANCE COLLATERAL DIRECTLY TO THE SERVICER'S CERTIFICATE ACCOUNT
IN THE AMOUNTS AND ON THE DATES SPECIFIED IN THE MORTGAGE LOAN
DOCUMENTS OR, IN A PARTIAL DEFEASANCE, THE PORTION OF SUCH SCHEDULED
PAYMENTS ATTRIBUTED TO THE ALLOCATED LOAN AMOUNT FOR THE REAL PROPERTY
DEFEASED, INCREASED BY ANY DEFEASANCE PREMIUM SPECIFIED IN THE
MORTGAGE LOAN DOCUMENTS (THE "SCHEDULED PAYMENTS").
H. THE SERVICER RECEIVED FROM THE MORTGAGOR WRITTEN CONFIRMATION
FROM A FIRM OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS, WHO WERE
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD,
STATING THAT (I) REVENUES FROM PRINCIPAL AND INTEREST PAYMENTS MADE ON
THE DEFEASANCE COLLATERAL (WITHOUT TAKING INTO ACCOUNT ANY EARNINGS ON
REINVESTMENT OF SUCH REVENUES) WILL BE SUFFICIENT TO TIMELY PAY EACH
OF THE SCHEDULED PAYMENTS AFTER THE DEFEASANCE INCLUDING THE PAYMENT
IN FULL OF THE MORTGAGE LOAN (OR THE ALLOCATED PORTION 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.
I. THE SERVICER RECEIVED OPINIONS FROM COUNSEL, WHO WERE APPROVED
BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD, THAT (I) THE
AGREEMENTS EXECUTED BY THE MORTGAGOR AND/OR THE DEFEASANCE OBLIGOR IN
CONNECTION WITH THE DEFEASANCE ARE ENFORCEABLE AGAINST THEM IN
ACCORDANCE WITH THEIR TERMS, AND (II) THE TRUSTEE WILL HAVE A
PERFECTED, FIRST PRIORITY SECURITY INTEREST IN THE DEFEASANCE
COLLATERAL DESCRIBED ABOVE.
J. THE AGREEMENTS EXECUTED IN CONNECTION WITH THE DEFEASANCE (I)
PERMIT REINVESTMENT OF PROCEEDS OF THE DEFEASANCE COLLATERAL ONLY IN
PERMITTED INVESTMENTS (AS DEFINED IN THE S&P CRITERIA), (II) PERMIT
RELEASE OF SURPLUS DEFEASANCE COLLATERAL AND EARNINGS ON REINVESTMENT
TO THE DEFEASANCE OBLIGOR OR THE MORTGAGOR ONLY AFTER THE MORTGAGE
LOAN HAS BEEN PAID IN FULL, IF ANY SUCH RELEASE IS PERMITTED, (III)
PROHIBIT ANY SUBORDINATE LIENS AGAINST THE DEFEASANCE COLLATERAL, AND
(IV) PROVIDE FOR PAYMENT FROM SOURCES OTHER THAN THE DEFEASANCE
COLLATERAL OR OTHER ASSETS OF THE DEFEASANCE OBLIGOR OF ALL FEES AND
EXPENSES OF THE SECURITIES INTERMEDIARY FOR ADMINISTERING THE
DEFEASANCE AND THE SECURITIES ACCOUNT AND ALL FEES AND EXPENSES OF
MAINTAINING THE EXISTENCE OF THE DEFEASANCE OBLIGOR.
K. THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE LOAN AS OF THE
DATE OF DEFEASANCE WAS $___________ [$20,000,000 OR LESS OR LESS THAN
FIVE PERCENT OF POOL BALANCE, WHICHEVER IS LESS] WHICH IS LESS THAN 5%
OF THE AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES AS OF THE
DATE OF THE MOST RECENT TRUSTEE'S MONTHLY CERTIFICATEHOLDER REPORT
RECEIVED BY US (THE "CURRENT REPORT").
L. THE DEFEASANCE DESCRIBED HEREIN, TOGETHER WITH ALL PRIOR AND
SIMULTANEOUS DEFEASANCES OF MORTGAGE LOANS, BRINGS THE TOTAL OF ALL
FULLY AND PARTIALLY DEFEASED MORTGAGE LOANS TO $__________________,
WHICH IS _____% OF THE AGGREGATE CERTIFICATE BALANCE OF THE
CERTIFICATES AS OF THE DATE OF THE CURRENT REPORT.
3. CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER HAS IMPOSED
SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE, SUBJECT TO THE
LIMITATIONS IMPOSED BY THE MORTGAGE LOAN DOCUMENTS, AS ARE CONSISTENT
WITH THE SERVICING STANDARD.
4. CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL AGREEMENTS,
INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE DEFEASANCE OBLIGOR, AND
OPINIONS OF COUNSEL AND INDEPENDENT ACCOUNTANTS EXECUTED AND DELIVERED
IN CONNECTION WITH THE DEFEASANCE DESCRIBED ABOVE AND THAT ORIGINALS
OR COPIES OF SUCH AGREEMENTS, INSTRUMENTS AND OPINIONS HAVE BEEN
TRANSMITTED TO THE TRUSTEE FOR PLACEMENT IN THE RELATED MORTGAGE FILE
OR, TO THE EXTENT NOT REQUIRED TO BE PART OF THE RELATED MORTGAGE
FILE, ARE IN THE POSSESSION OF THE SERVICER AS PART OF THE SERVICER'S
MORTGAGE FILE.
5. CERTIFY AND CONFIRM THAT THE DETERMINATIONS AND CERTIFICATIONS
DESCRIBED ABOVE WERE RENDERED IN ACCORDANCE WITH THE SERVICING
STANDARD SET FORTH IN, AND THE OTHER APPLICABLE TERMS AND CONDITIONS
OF, THE POOLING AND SERVICING AGREEMENT.
6. CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE SERVICER HAS
CAUSED THIS NOTICE AND CERTIFICATION TO BE EXECUTED DID CONSTITUTE A
SERVICING OFFICER AS OF THE DATE OF THE DEFEASANCE DESCRIBED ABOVE.
7. AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN EXHIBIT B TO YOU
UPON REQUEST.
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
SERVICER:
----------------------------
By:
------------------------------------
Name:
Title:
EXHIBIT AA
Additional Disclosure Notification
**SEND VIA FAX TO [000-000-0000] AND VIA EMAIL TO [Xxxxx.xxxxx@xxxxxx.xxx] AND
VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ13
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 March 1, 2007, among among Xxxxxx Xxxxxxx Capital I Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as general master servicer,
LNR Partners, Inc., as general special servicer, NCB, FSB, as NCB master
servicer with respect to the NCB, FSB Loans only, National Consumer Cooperative
Bank, as special servicer with respect to the Co-op Mortgage Loans, only, and
U.S. Bank National Association, as trustee, paying agent and certificate
registrar, the undersigned, as [ ], hereby notifies you that certain events have
come to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By:
------------------------------------
Name:
Title:
EXHIBIT BB-1
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, issued pursuant
to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR Partners,
Inc. as general special servicer (the "General Special Servicer"),
NCB, FSB, as master servicer with respect to the NCB, FSB Loans only
(the "NCB Master Servicer"), National Consumer Cooperative Bank, as
special servicer with respect to the Co-op Mortgage Loans only(the
"Co-op Special Servicer") and U.S. Bank National Association, as
trustee, paying agent and certificate registrar (the "Trustee").
Capitalized terms used herein but not defined herein have the
respective meanings given them in the Pooling and Servicing Agreement.
----------------------------------------------------------------------
I, [identify the certifying individual], the senior officer in charge
of securitization of the Depositor, certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___] (the "Annual Report") and all reports on Form 10-D required to
be filed in respect of periods included in the year covered by the
Annual Report (collectively with the Annual Report, the "Reports"), of
the Trust;
2. Based on my knowledge, the 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 distribution, servicing and other
information required to be provided under Form 10-D for the period
covered by the Annual Report is included in the Reports;
4. Based on my knowledge and the servicer compliance statement(s)
required in the Annual Report under Item 1123 of Regulation AB, and
except as disclosed in the Reports, the Master Servicers, the Special
Servicers, the Primary Servicers and the Reporting Sub-Servicers have
fulfilled their obligations under the Pooling and Servicing Agreement
or the applicable sub-servicing agreement or primary servicing
agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on
assessments of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18
have been included as an exhibit to the Annual Report, except as
otherwise disclosed in the Annual Report. Any material instances of
noncompliance described in such reports have been disclosed in the
Annual Report.
In giving the certifications above, I have reasonably relied information
provided to me by the following unaffiliated parties:
o Wells Fargo Bank, N.A., as General Master Servicer;
o NCB, FSB, as NCB Master Servicer;
o LNR Partners, Inc., as General Special Servicer;
o National Consumer Cooperative Bank, as Co-op Special Servicer;
o U.S. Bank National Association, as Trustee;
o SunTrust Bank, as Primary Servicer;
o [names of additional Sub-Servicers].
Date:
---------------------------------------
---------------------------------------------
[Signature]
[Title]
EXHIBIT BB-2
FORM OF MASTER SERVICER PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, issued pursuant
to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR Partners,
Inc. as general special servicer (the "General Special Servicer"),
NCB, FSB, as master servicer with respect to the NCB, FSB Loans only
(the "NCB Master Servicer"), National Consumer Cooperative Bank, as
special servicer with respect to the Co-op Mortgage Loans only(the
"Co-op Special Servicer") and U.S. Bank National Association, as
trustee, paying agent and certificate registrar (the "Trustee").
Capitalized terms used herein but not defined herein have the
respective meanings given them in the Pooling and Servicing Agreement.
----------------------------------------------------------------------
I, [identify the certifying individual], certify on behalf of the [General
Master Servicer or NCB Master Servicer, as applicable] to the Depositor and its
officers, directors and affiliates, with the knowledge and intent that they will
rely upon this certification in connection with the certification concerning the
Trust to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of 2002,
that:
1. I have reviewed the report of information provided by the [General
Master Servicer/NCB Master Servicer] for inclusion in the Annual
Report on Form 10-K ("Form 10-K") relating to the Trust and all
reports of information by the [General Master Servicer/NCB Master
Servicer] for inclusion in the Asset-Backed Issuer Distribution
Reports on Form 10-D ("Form 10-D") relating to the Trust (such reports
by the [General Master Servicer/NCB Master Servicer], collectively,
the "Master Servicer Periodic Reports");
2. Based on my knowledge, the Master Servicer Periodic Reports, taken as
a whole, do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made,
not misleading with respect to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Master Servicer Periodic
Reports under the provisions of the Pooling and Servicing Agreement
for the calendar year preceding the date of the Form 10-K is included
in the Master Servicer Periodic Reports;
4. I am responsible for reviewing the activities performed by the
[General Master Servicer/NCB Master Servicer] and based on my
knowledge and the compliance review conducted in preparing the
[General Master Servicer/NCB Master Servicer]'s compliance statement
under the Pooling and Servicing Agreement in connection with Item 1123
of Regulation AB, and except as disclosed in the Master Servicer
Periodic Reports, the [General Master Servicer/NCB Master Servicer]
has fulfilled its obligations under the Pooling and Servicing
Agreement;
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessment of compliance with the relevant Servicing
Criteria for asset-backed securities required under the Pooling and
Servicing] Agreement to be delivered by the [General Master
Servicer/NCB Master Servicer] included in the 10-K filing to which
this certification relates in connection with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
provided thereby, and disclose any and all material instances of
noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the [General
Master Servicer/NCB Master Servicer] with respect to the Trust's
fiscal year [_____] all information relating to the [General Master
Servicer's/NCB Master Servicer's] assessment of compliance with the
Relevant Servicing Criteria in order to enable them to conduct a
review in compliance with the standards for attestation engagements
issued or adopted by the PCAOB.
This Certification is being signed by me as an officer of the [General
Master Servicer/NCB Master Servicer] responsible for reviewing the activities
performed by the [General Master Servicer/NCB Master Servicer] under the Pooling
and Servicing Agreement.
Date:
--------------------------------
[ENTITY NAME]
---------------------------------------
[Signature]
[Title]
EXHIBIT BB-3
FORM OF SPECIAL SERVICER PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, issued pursuant
to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR Partners,
Inc. as general special servicer (the "General Special Servicer"),
NCB, FSB, as master servicer with respect to the NCB, FSB Loans only
(the "NCB Master Servicer"), National Consumer Cooperative Bank, as
special servicer with respect to the Co-op Mortgage Loans only(the
"Co-op Special Servicer") and U.S. Bank National Association, as
trustee, paying agent and certificate registrar (the "Trustee").
Capitalized terms used herein but not defined herein have the
respective meanings given them in the Pooling and Servicing Agreement.
----------------------------------------------------------------------
I, [identify the certifying individual], certify on behalf of the [General
Special Servicer or Co-op Special Servicer, as applicable] to the Depositor and
its officers, directors and affiliates, with the knowledge and intent that they
will rely upon this certification in connection with the certification
concerning the Trust to be signed by an officer of the Depositor and submitted
to the Securities and Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of
2002, that:
1. I have reviewed the report of information provided by the [General
Special Servicer/Co-op Special Servicer] for inclusion in the Annual
Report on Form 10-K ("Form 10-K") relating to the Trust and all
reports of information by the [General Special Servicer/Co-op Special
Servicer] for inclusion in the Asset-Backed Issuer Distribution
Reports on Form 10-D ("Form 10-D") relating to the Trust (such reports
by the [General Special Servicer/Co-op Special Servicer],
collectively, the "Special Servicer Periodic Reports");
2. Based on my knowledge, the Special Servicer Periodic Reports, taken as
a whole, do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made,
not misleading with respect to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Special Servicer Periodic
Reports under the provisions of the Pooling and Servicing Agreement
for the calendar year preceding the date of the Form 10-K is included
in the Special Servicer Periodic Reports;
4. I am responsible for reviewing the activities performed by the
[General Special Servicer/Co-op Special Servicer], and based on my
knowledge and the compliance review conducted in preparing the
[General Special Servicer/Co-op Special Servicer]'s compliance
statement under the [Pooling and Servicing/Subservicing] Agreement in
connection with Item 1123 of Regulation AB, and except as disclosed in
the Special Servicer Periodic Reports, the [General Special
Servicer/Co-op Special Servicer] has fulfilled its obligations under
the Pooling and Servicing Agreement in all material respects;
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation
reports on assessment of compliance with the relevant Servicing
Criteria for asset-backed securities required under the Pooling and
Servicing Agreement to be delivered by the [General Special
Servicer/Co-op Special Servicer] included in the 10-K filing to
which this certification relates in connection with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
provided thereby, and disclose any and all material instances of
noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the [General
Special Servicer/Co-op Special Servicer] with respect to the Trust's
fiscal year [_____] all information relating to the [General Special
Servicer/Co-op Special Servicer]'s assessment of compliance with the
Relevant Servicing Criteria in order to enable them to conduct a
review in compliance with the standards for attestation engagements
issued or adopted by the PCAOB.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; names of master servicers; names of sub-servicers].
This Certification is being signed by me as an officer of the [General
Special Servicer/Co-op Special Servicer] responsible for reviewing the
activities performed by the [General Special Servicer/Co-op Special Servicer]
under the Pooling and Servicing Agreement.
Date:
-------------------------
[ENTITY NAME]
---------------------------------------
[Signature]
[Title]
EXHIBIT BB-4
FORM OF TRUSTEE PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, issued pursuant
to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR Partners,
Inc. as general special servicer (the "General Special Servicer"),
NCB, FSB, as master servicer with respect to the NCB, FSB Loans only
(the "NCB Master Servicer"), National Consumer Cooperative Bank, as
special servicer with respect to the Co-op Mortgage Loans only(the
"Co-op Special Servicer") and U.S. Bank National Association, as
trustee, paying agent and certificate registrar (the "Trustee").
Capitalized terms used herein but not defined herein have the
respective meanings given them in the Pooling and Servicing Agreement.
----------------------------------------------------------------------
I, [identify the certifying individual], certify on behalf of the Trustee to the
Depositor and its officers, directors and affiliates, with the knowledge and
intent that they will rely upon this certification in connection with the
certification concerning the Trust to be signed by an officer of the Depositor
and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the information provided by the Paying Agent for
inclusion in the Annual Report on Form 10-K ("Form 10-K") relating to
the Trust and all information provided by the Paying Agent for
inclusion in Form 10-D ("Form 10-D") relating to the Trust (such
information provided by the Paying Agent, collectively, the "Paying
Agent Periodic Information");
2. Based on my knowledge, the Paying Agent Periodic Information, 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 the Form 10-K;
3. Based on my knowledge, all distribution and other information required
to be included in the Paying Agent Periodic Information under the
provisions of the Pooling and Servicing Agreement for the calendar
year preceding the date of the Form 10-K is included in the Paying
Agent Periodic Information;
4. I am responsible for reviewing the activities performed by the Paying
Agent and based on my knowledge and the compliance reviews conducted
in preparing the Paying Agent's compliance statement under the Pooling
and Servicing Agreement in connection with Item 1123 of Regulation AB,
and except as disclosed in the Paying Agent Periodic Information, the
Paying Agent has fulfilled its obligations under the Pooling and
Servicing Agreement; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with the relevant Servicing Criteria for
asset-backed securities required under the Pooling and Servicing
Agreement to be delivered by the Paying Agent for inclusion in the
10-K filing to which this certification relates in connection with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18
have been included as an exhibit to Form 10-K, except as otherwise
disclosed in Form 10-K. Any material instances of noncompliance
described in such reports have been disclosed in such reports on Form
10-K.
This Certification is being signed by me as an officer of the Paying
Agent responsible for reviewing the activities performed by the Paying Agent
under the Pooling and Servicing Agreement.
Date:
-------------------------
[ENTITY NAME]
[Signature]
[Title]
EXHIBIT BB-5
FORM OF REPORTING SUB-SERVICER PERFORMANCE CERTIFICATION
Re: Xxxxxx Xxxxxxx Capital I Trust 2007-IQ13 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13, issued pursuant
to the Pooling and Servicing Agreement, dated as of March 1, 2007 (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
general master servicer (the "General Master Servicer"), LNR Partners,
Inc. as general special servicer (the "General Special Servicer"),
NCB, FSB, as master servicer with respect to the NCB, FSB Loans only
(the "NCB Master Servicer"), National Consumer Cooperative Bank, as
special servicer with respect to the Co-op Mortgage Loans only(the
"Co-op Special Servicer") and U.S. Bank National Association, as
trustee, paying agent and certificate registrar (the "Trustee"); and
the Sub-Servicing Agreement, dated as of [_____][__], [___] (the
"Sub-Servicing Agreement") between [identify parties]. Capitalized
terms used herein but not defined herein have the respective meanings
given them in the Sub-Servicing Agreement or, if not defined in the
Sub-Servicing Agreement, then the meanings set forth in the Pooling
and Servicing Agreement.
----------------------------------------------------------------------
I, [identify the certifying individual], certify on behalf of the [SUB-SERVICER]
to the Depositor and its officers, directors and affiliates, with the knowledge
and intent that they will rely upon this certification in connection with the
certification concerning the Trust to be signed by an officer of the Depositor
and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, that:
1. I have reviewed the report of information provided by the Sub-Servicer
for inclusion in the Annual Report on Form 10-K ("Form 10-K") relating
to the Trust and all reports of information by the Sub-Servicer for
inclusion in the Asset-Backed Issuer Distribution Reports on Form 10-D
("Form 10-D") relating to the Trust (such reports by the Sub-Servicer
collectively, the "Sub-Servicer Periodic Reports");
2. Based on my knowledge, the Sub-Servicer Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the Sub-Servicer Periodic
Reports under the provisions of the Sub-Servicing Agreement for the
calendar year preceding the date of the Form 10-K is included in the
Sub-Servicer Periodic Reports;
4. Based on my knowledge and the compliance review conducted in preparing
the Sub-Servicer's compliance statement under the Sub-Servicing
Agreement in connection with Item 1123 of Regulation AB, and except as
disclosed in the Sub-Servicer Periodic Reports, the Sub-Servicer has
fulfilled its obligations under the Sub-Servicing Agreement;
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with the relevant Servicing Criteria for
asset-backed securities required under the related Sub-Servicing
Agreement to be delivered by the Sub-Servicer included in the 10-K
filing to which this certification relates in connection with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been provided thereby, and disclose any and all material instances of
noncompliance described in such reports; and
6. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing
criteria for asset-backed securities in respect of the Sub-Servicer
with respect to the Trust's fiscal year [_____] all information
relating to the Sub-Servicer's assessment of compliance with the
Relevant Servicing Criteria in order to enable them to conduct a
review in compliance with the standards for attestation engagements
issued or adopted by the PCAOB. This Certification is being signed
by me as an officer of the Sub-Servicer responsible for reviewing
the activities performed by the Sub-Servicer under the Pooling and
Servicing Agreement.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [name of trustee, name or
paying agent, certificate administrator or other similar party; name of
depositor; names of master servicers; names of other sub-servicers].
This Certification is being signed by me as an officer of the
Sub-Servicer responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Agreement.
Date:
-------------------------
[ENTITY NAME]
---------------------------------------
[Signature]
[Title]
SCHEDULE I
MSMC LOAN SCHEDULE
[see attached]
DISCLAIMER
Prospective investors are advised to read carefully, and should rely solely on,
the Prospectus Supplement dated March 22, 2007, and accompanying Prospectus
dated February 6, 2007 (together, the "Prospectus") relating to the Certificates
referred to below in making their investment decision.
This diskette accompanies and is a part of the Prospectus relating to the
Commercial Mortgage Pass-Through Certificates Series 2007-IQ13 (the
"Certificates"). The information set forth on this diskette is an electronic
copy of the information set forth in Appendix II labeled "Certain
Characteristics of the Mortgage Loans" in the Prospectus. This diskette should
be reviewed only in conjunction with the entire Prospectus. This diskette does
not contain all relevant information relating to the Certificates. Such
information is described elsewhere in the Prospectus.
Methodologies used in deriving certain information contained on this diskette
are more fully described elsewhere in the Prospectus.
The information on this diskette should not be viewed as projections, forecasts,
predictions or opinions with respect to value.
IMPORTANT NOTICE RELATING TO AUTOMATICALLY GENERATED EMAIL DISCLAIMERS Any
legends, disclaimers or other notices that may appear at the bottom of, or
attached to, the email communication to which this material may have been
attached are not applicable to these materials and should be disregarded. Such
legends, disclaimers or other notices have been automatically generated as a
result of these materials having been sent via Bloomberg or another email
system.
APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Mortgage
Loan No. CMSA Loan No. CMSA Property No. Loan Seller(1) Property Name(2) Loan Group
-------- ------------- ----------------- -------------- ------------------------------------------- ----------
1 1 0-000 XXXX 00-000 Xxxxxxx Xxxxxx 1
2 2-001 MSMC RREEF Portfolio - Xxxxxx'x Crossing 2
2 2-002 MSMC RREEF Portfolio - Lionsgate 2
2 2-003 MSMC RREEF Portfolio - University Heights 2
2 2-004 MSMC RREEF Portfolio - Carlyle Station 2
2 2-005 MSMC RREEF Portfolio - XxXxxx Farms 2
2 2-006 MSMC RREEF Portfolio - Fox Run 2
2 2-007 MSMC RREEF Portfolio - Xxxxxxx Station 2
2 2-008 MSMC RREEF Portfolio - The Xxxx 2
4 4 0-000 XXXX Xx. Xxxxx Xxxxx 1
5 5 0-000 XXXX AT&T Tower 1
6 6 0-000 XXXX XXX Plaza 1
7 7 7-001 MSMC Plymouth Road Technical Center 1
8 8-001 MSMC IVY MHP Portfolio - Tallowood Isles 2
9 9 9-001 MSMC IVY MHP Portfolio - Kissimmee Gardens 2
10 10 10-001 MSMC IVY MHP Portfolio - Paddock Park South 2
11 11 11-001 MSMC IVY MHP Portfolio - Shady Road Villas 2
12 12 12-001 MSMC Northridge I 1
13 13 13-001 MSMC 000 Xxxxxxx Xxxxxx 1
20 20 20-001 MSMC Chula Vista Kmart 1
30 30 30-001 MSMC Turlock Cinema Center 1
37 37 37-001 MSMC Crossings at Gresham Station 1
40 40 00-000 XXXX Xx Toscana Village 1
51 51 51-001 MSMC Apache Xxxxx 0
00 00 00-000 XXXX Xxxx Xxxxxxx - Xxxxxxxx 1
55 55 55-001 MSMC Skagen Plaza 1
57 57 57-001 MSMC LV Portfolio - Pecos XxXxxx Office Building 1
58 58 58-001 MSMC LV Portfolio - White Sands Retail Building 1
70 70 70-001 MSMC College Mall Apartments 2
71 71 00-000 XXXX Xxx Xxxx Plaza 1
78 78 78-001 MSMC 000X Xxxxxxxx Xxxx 1
80 80 80-001 MSMC CVS & Shops - Downey 1
82 82 82-001 MSMC PNC at Newtown Square 1
85 85 85-001 MSMC 00000 Xxxxxxxxxx Xxxxxx 1
86 86 86-001 MSMC Rite Aid - Fresno 1
87 87 87-001 MSMC Brookside Xxxxxxx Phase II 2
88 88 88-001 MSMC Rite Aid - Hyde Park 1
93 93 93-001 MSMC Aspen Court Medical Building 1
94 94 94-001 MSMC AGIA Office Building 1
103 103 103-001 MSMC 000 X 00xx Xxxxxx 1
104 104 104-001 MSMC 000 X 000xx Xxxxxx 2
105 105 105-001 MSMC Hampton Inn - Melbourne 1
106 106 106-001 MSMC Briarcliff Village 1
107 107 107-001 MSMC Ametek Building 1
115 115 115-001 MSMC Commerce Bank 1
116 116 000-000 XXXX Xxx Xxxx Xxxxxxx Apartments 2
117 117 117-001 MSMC Tinley Court Apartments 2
119 119 000-000 XXXX Xxxx Xxxx Xxxxxxx 1
127 127 127-001 MSMC Tractor Supply - Bulverde 1
Totals and Weighted
Averages:
Mortgage Cross-Collater- Cut-Off Date Post IO Period Cut-Off Balloon
Loan No. alization(2) Original Balance Balance(3) NOI DSCR(4) NCF DSCR(4) NCF DSCR(4) Date LTV(4) LTV(4)
-------- --------------- ---------------- ------------ ----------- ----------- -------------- ----------- -------
1 No $210,000,000 $210,000,000 1.20 1.05 NAP 75.2% 75.2%
2 No $35,136,585 $35,136,585 1.02 1.00 NAP 75.8% 75.8%
2 No $25,097,561 $25,097,561 1.02 1.00 NAP 75.8% 75.8%
2 No $24,021,951 $24,021,951 1.02 1.00 NAP 75.8% 75.8%
2 No $21,691,463 $21,691,463 1.02 1.00 NAP 75.8% 75.8%
2 No $17,209,756 $17,209,756 1.02 1.00 NAP 75.8% 75.8%
2 No $10,218,293 $10,218,293 1.02 1.00 NAP 75.8% 75.8%
2 No $7,887,805 $7,887,805 1.02 1.00 NAP 75.8% 75.8%
2 No $5,736,585 $5,736,585 1.02 1.00 NAP 75.8% 75.8%
4 No $90,000,000 $90,000,000 1.76 1.58 NAP 63.4% 63.4%
5 No $65,000,000 $65,000,000 1.57 1.39 1.16 75.0% 69.9%
6 No $43,000,000 $43,000,000 1.34 1.30 NAP 77.5% 77.5%
7 No $34,000,000 $31,519,687 1.57 1.39 1.39 58.4% 26.0%
8 Yes $12,600,000 $12,600,000 1.30 1.28 1.05 70.3% 65.6%
9 Yes $9,100,000 $9,100,000 1.30 1.28 1.05 70.3% 65.6%
10 Yes $3,900,000 $3,900,000 1.30 1.28 1.05 70.3% 65.6%
11 Yes $1,900,000 $1,900,000 1.30 1.28 1.05 70.3% 65.6%
12 No $27,400,000 $27,400,000 1.29 1.10 NAP 78.1% 78.1%
13 No $25,500,000 $25,500,000 1.43 1.39 1.15 68.2% 63.5%
20 No $17,600,000 $17,600,000 1.45 1.37 NAP 67.4% 67.4%
30 No $14,250,000 $14,250,000 1.76 1.64 NAP 69.7% 69.7%
37 No $10,400,000 $10,400,000 1.47 1.41 1.20 71.7% 63.8%
40 No $9,600,000 $9,600,000 1.46 1.38 1.14 71.1% 62.5%
51 No $8,000,000 $8,000,000 1.60 1.49 1.25 69.4% 61.3%
52 No $7,700,000 $7,670,975 1.43 1.35 NAP 59.0% 1.3%
55 No $7,300,000 $7,300,000 1.58 1.50 1.26 62.9% 58.9%
57 Yes $5,025,000 $5,025,000 1.66 1.49 1.23 72.3% 63.6%
58 Yes $2,200,000 $2,200,000 1.66 1.49 1.23 72.3% 63.6%
70 No $6,000,000 $6,000,000 1.60 1.49 1.23 75.9% 70.7%
71 No $6,000,000 $5,986,621 1.43 1.31 NAP 66.5% 56.3%
78 No $5,330,000 $5,322,545 1.59 1.40 NAP 61.9% 51.9%
80 No $5,000,000 $5,000,000 1.57 1.52 NAP 64.1% 64.1%
82 No $4,800,000 $4,784,792 1.22 1.22 NAP 75.9% 64.2%
85 No $4,500,000 $4,500,000 1.70 1.62 1.34 72.6% 63.8%
86 No $4,440,000 $4,433,933 1.28 1.23 NAP 69.3% 58.5%
87 No $4,400,000 $4,400,000 1.57 1.54 1.28 65.7% 61.4%
88 No $4,300,000 $4,300,000 1.23 1.22 NAP 62.3% 38.5%
93 No $4,000,000 $4,000,000 1.41 1.20 NAP 58.0% 48.6%
94 No $4,000,000 $4,000,000 1.88 1.67 NAP 61.5% 61.5%
103 No $3,500,000 $3,495,203 1.16 1.13 NAP 64.7% 54.6%
104 No $3,500,000 $3,495,100 1.17 1.15 NAP 63.5% 53.3%
105 No $3,500,000 $3,493,634 2.64 2.36 NAP 43.7% 33.7%
106 No $3,500,000 $3,490,092 1.35 1.29 NAP 75.9% 65.2%
107 No $3,470,000 $3,462,199 1.33 1.25 NAP 69.9% 63.1%
115 No $3,000,000 $3,000,000 1.46 1.46 1.20 69.8% 65.0%
116 No $3,000,000 $2,995,892 1.20 1.15 NAP 73.1% 61.6%
117 No $3,000,000 $2,982,078 3.23 3.03 NAP 41.4% 32.2%
119 No $2,800,000 $2,800,000 1.50 1.43 1.20 80.0% 70.9%
127 No $2,400,000 $2,394,921 1.27 1.19 NAP 70.4% 60.2%
Totals and Weighted $835,915,000 $833,302,673 1.44x 1.35x 1.19x 69.1% 61.9%
Averages:
Mortgage
Loan No. Street Address City State Zip Code Property Type
-------- ------------------------------------- ---------------- ----- -------- ------------------------------
1 00-000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 Xxxxxx
0 000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Multifamily
2 00000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 Multifamily
2 00000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000 Multifamily
2 00000 Xxxxxx Xxxx Xxxxxxxx XX 00000 Multifamily
2 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 Multifamily
2 0 Xxxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Multifamily
2 00 Xxxxxxx Xxxx Xxxx Xxxxxxxxxxxx XX 00000 Multifamily
2 00 Xxxxxxxx Xxx XX Xxxxxxxx XX 00000 Multifamily
4 0000 Xx. Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx XX 00000 Retail
5 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Office
6 00000 Xx Xxxxxx Xxxx Xxx Xxxxx XX 00000 Xxxxxx
0 00000-00000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Mixed Use
8 0000 XX 00xx Xxxxxx Xxxxxxx Xxxxx XX 00000 Manufactured Housing Community
9 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Manufactured Housing Community
10 0000 XX 00xx Xxxxxx Xxxxx XX 00000 Manufactured Housing Community
11 0000 XX 00xx Xxxxxx Xxxxx XX 00000 Manufactured Housing Community
12 00000 Xxxxxxxx Xxxx Xxxx Xxxxxxx XX 00000 Xxxxxx
00 000 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000 Xxxxxx
00 000 Xxxx X Xxxxxx Xxxxx Xxxxx XX 00000 Retail
30 0000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Retail
37 000 XX 00xx Xxxxxx Xxxxxxx XX 00000 Mixed Use
40 0000 X. Xxxxxx Xxxx & 000 X. Xxx Xxxx Xxxxxx XX 00000 Retail
51 00000 Xxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Retail
52 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 Retail
55 00000 XX 000xx Xxxxx Xxxxxxxxx XX 00000 Retail
57 0000 Xxxxx-Xxxxxx Xxx Xxxxx XX 00000 Office
58 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx XX 00000 Retail
70 0000 Xxxx 0xx Xxxxxx Xxxxxxxxxxx XX 00000 Multifamily
71 0-00 Xxx Xxxx Xxxxxxx, 00-00
Xxxxxx Road, 00 Xxxxx Xxxxx,
00-00 Xxxxx Xxx, 000 XX
Xxxxx 0, 00 Xxxxxxxxx Xxx Xxxxxxxxxxx XX 00000 Retail
78 000X Xxxxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000 Office
80 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000 Retail
82 0000 Xxxx Xxxxxxx Xxxx (PA Route 3) Xxxxxxx Xxxxxx XX 00000 Other
85 00000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Retail
86 0000 X. Xxxx Xxxxxx Xxxxxx XX 00000 Retail
87 000 Xxxx Xxxx Xxxxxxxx Xxxxxx XX 00000 Multifamily
88 Xxx Xxxx Xxxxx Xxxx Xxxx Xxxx XX 00000 Retail
93 000 Xxxxx 00 Xxxxxxxxx XX 00000 Xxxxxx
00 0000 Xxxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Xxxxxx
000 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Mixed Use
104 000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000 Multifamily
105 000 Xxxx Xxxx Xxxx Xxxxxxxxx XX 00000 Hospitality
106 0000 X. Xxxxxxxx Xxxxx, Xxxxxxxx X Xxxxxx Xxxx XX 00000 Retail
107 0000 Xxxxxxx Xxxxxx Xxxx XX Xxxxxxxx XX 00000 Industrial
115 000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Other
116 000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxxx Xxxxx XX 00000 Multifamily
117 00000 Xxxxxxxxxxx Xxxx Xxxxxx Xxxx XX 00000 Multifamily
119 0000 Xxxxxxx 0 Xxxxxxx XX 00000 Retail
127 00000 Xxxxxxx 000 Xxxxx Xxxxxxxx XX 00000 Retail
Totals and Weighted
Averages:
Mortgage Percent
Loan No. Property Sub-Type Units/SF Year Built Year Renovated Leased(5)
-------- ------------------------------ --------- ------------------------------------------ -------------- ----------
1 Urban 811,687 1929 / 1988 2000 90.7%
2 Garden 532 1989 2004-2006 91.9%
2 Garden 328 2000 NAP 89.6%
2 Garden 467 1991 NAP 85.9%
2 Garden 408 1986 NAP 80.1%
2 Garden 283 1991 NAP 91.2%
2 Garden 218 1990 NAP 94.0%
2 Garden 210 1975 2000 88.6%
2 Garden 134 1986 NAP 83.6%
4 Anchored 1,219,704 2003 NAP 84.5%
5 Urban 606,579 1991 NAP 72.7%
6 Urban 155,930 1996 NAP 100.0%
7 Office/Warehouse 1,148,235 1949 2000 90.5%
8 Manufactured Housing Community 276 1987 NAP 79.3%
9 Manufactured Housing Community 240 1972 NAP 78.3%
10 Manufactured Housing Community 188 1987 NAP 75.0%
11 Manufactured Housing Community 130 1987 NAP 57.7%
12 Suburban 123,208 1988 NAP 93.7%
13 Urban 61,353 1926 NAP 69.7%
20 Free Standing 110,000 1994 NAP 100.0%
30 Anchored 121,000 0000-0000 1998 97.3%
37 Multifamily/Retail 81 2006 NAP 80.9%
40 Unanchored 47,267 1993 / 1996 NAP 100.0%
51 Unanchored 43,717 1986 2007 80.8%
52 Free Standing 76,920 2006 NAP 100.0%
55 Unanchored 25,676 2006 NAP 100.0%
57 Medical 29,700 1992 NAP 100.0%
58 Unanchored 18,002 1988 NAP 93.5%
70 Garden 000 0000-0000 NAP 100.0%
71 Unanchored 83,991 1930 / 1970 / 1974-1976 / 1984-1987 / 1999 1984 98.8%
78 Medical 37,351 1998 NAP 100.0%
80 Unanchored 26,600 2003 NAP 100.0%
82 Leased Fee 4,000 2007 NAP 100.0%
85 Unanchored 18,000 2006 NAP 100.0%
86 Free Standing 17,272 2006 NAP 100.0%
87 Townhouse 36 2006 NAP 97.2%
88 Free Standing 14,564 2006 NAP 100.0%
93 Medical 27,393 1960s 1982 94.4%
94 Suburban 24,709 1989 NAP 100.0%
103 Retail/Multifamily 9,043 1910 NAP 79.2%
000 Xxx Xxxx 22 1925 NAP 100.0%
105 Limited Service 66 1997 2007 78.9%
106 Unanchored 12,409 2006 NAP 87.9%
107 Warehouse 41,000 1989 NAP 100.0%
115 Leased Fee 3,669 2007 NAP 100.0%
116 Garden 46 1969 NAP 84.8%
117 Senior Housing 121 1972 2004-2005 95.0%
119 Unanchored 12,799 2005 NAP 87.2%
127 Free Standing 22,713 2005 NAP 100.0%
Totals and Weighted
Averages:
Mortgage Percent Leased Related Cut-Off Date Balance First Payment
Loan No. as of Date(5) Security Type(6) Lien Position Borrower List per Unit or SF Note Date Date (P&I)(7)
-------- -------------- ---------------- ------------- ------------- -------------------- ---------- -------------
1 01/01/2007 Fee First $259 01/17/2007 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
2 12/31/2006 Fee First $158,915 12/08/2006 NAP
2 12/31/2006 Fee First $158,915 12/08/2006 NAP
2 01/26/2007 Fee First $158,915 12/08/2006 NAP
4 02/01/2007 Fee First $74 12/28/2006 NAP
5 02/28/2007 Fee First $107 03/07/2007 04/08/2012
6 02/01/2007 Fee First $276 01/31/2007 NAP
7 09/30/2006 Fee First $27 01/01/2004 08/01/2004
8 08/29/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
9 08/31/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
10 09/01/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
11 09/01/2006 Fee First 8, 9, 10, 11 $32,974 11/29/2006 01/01/2012
12 01/01/2007 Fee First $222 01/18/2007 NAP
13 01/19/2007 Fee First $416 11/16/2006 01/01/2012
20 03/01/2007 Fee First $160 12/27/2006 NAP
30 01/08/2007 Fee First $117 01/11/2007 NAP
37 12/31/2006 Fee First $128,395 01/12/2007 03/01/2009
40 01/23/2007 Fee First $203 01/31/2007 03/01/2009
51 01/17/2007 Fee First $183 01/17/2007 03/01/2009
52 03/01/2007 Leasehold First $100 01/25/2007 03/01/2007
55 12/12/2006 Fee First $284 01/05/2007 03/01/2012
57 01/02/2007 Fee First 57, 58 $151 02/02/2007 04/01/2009
58 12/01/2006 Fee First 57, 58 $151 02/02/2007 04/01/2009
70 02/08/2007 Fee First $42,857 12/28/2006 02/01/2012
71 12/01/2006 Fee First $71 12/27/2006 02/01/2007
78 12/13/2006 Fee First $143 01/11/2007 03/01/2007
80 11/20/2006 Fee / Leasehold First $188 01/25/2007 NAP
82 03/01/2007 Fee First $1,196 11/22/2006 01/01/2007
85 12/01/2006 Fee First $250 12/22/2006 02/01/2009
86 12/07/2006 Fee First $257 01/10/2007 03/01/2007
87 12/27/2006 Fee First 87, 88 $122,222 12/27/2006 02/01/2012
88 12/07/2006 Fee First 87, 88 $295 02/26/2007 04/01/2007
93 01/18/2007 Fee First $146 02/08/2007 04/01/2007
94 10/31/2006 Fee First $162 12/22/2006 NAP
103 02/23/2007 Fee First 103, 104 $387 01/19/2007 03/01/2007
104 01/16/2007 Fee First 103, 104 $158,868 01/17/2007 03/01/2007
105 11/30/2006 Fee First $52,934 01/19/2007 03/01/2007
106 10/12/2006 Fee First $281 11/03/2006 01/01/2007
107 10/24/2006 Fee First $84 12/29/2006 02/01/2007
115 10/11/2006 Fee First $818 12/21/2006 02/01/2012
116 12/01/2006 Fee First $65,128 01/10/2007 03/01/2007
117 12/01/2006 Fee First $24,645 10/11/2006 12/01/2006
119 02/23/2007 Fee First $219 01/16/2007 03/01/2009
127 11/01/2006 Fee First $105 12/20/2006 02/01/2007
Totals and Weighted
Averages:
Mortgage First Payment
Loan No. Date (IO)(7) Maturity Date Due Date Grace Period(8) ARD Loan Lockbox Status Lockbox Type
-------- ------------- ------------- -------- --------------- -------- -------------- --------------------
1 03/08/2007 02/08/2017 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
2 01/08/2007 12/08/2011 8 0 No In-Place Hard
4 02/08/2007 01/08/2012 8 0 No In-Place Hard
5 04/08/2007 04/08/2017 8 0 No In-Place Hard
6 03/01/2007 02/01/2017 1 0 No In-Place Hard
7 02/01/2004 01/01/2019 1 5 No NAP NAP
8 01/01/2007 12/01/2016 1 5 No NAP NAP
9 01/01/2007 12/01/2016 1 5 No NAP NAP
10 01/01/2007 12/01/2016 1 5 No NAP NAP
11 01/01/2007 12/01/2016 1 5 No NAP NAP
12 03/08/2007 02/08/2012 8 0 No In-Place Hard
13 01/01/2007 12/01/2016 1 0 No In-Place Hard
20 02/01/2007 01/01/2017 1 5 No Springing Hard
30 03/01/2007 02/01/2017 1 5 No NAP NAP
37 03/01/2007 02/01/2017 1 5 No NAP NAP
40 03/01/2007 02/01/2017 1 5 No Springing Hard
51 03/01/2007 02/01/2017 1 5 No NAP NAP
52 NAP 02/01/2022 1 5 No Springing Hard
55 03/01/2007 02/01/2017 1 5 No NAP NAP
57 04/01/2007 03/01/2017 1 5 No Springing Hard
58 04/01/2007 03/01/2017 1 5 No NAP NAP
70 02/01/2007 01/01/2017 1 5 No NAP NAP
71 NAP 01/01/2017 1 5 No NAP NAP
78 NAP 02/01/2017 1 5 No NAP NAP
80 03/08/2007 02/08/2017 8 0 No NAP NAP
82 NAP 12/01/2016 1 5 No Springing Hard
85 02/01/2007 01/01/2017 1 5 No NAP NAP
86 NAP 02/01/2017 1 5 No Springing Hard
87 02/01/2007 01/01/2017 1 5 No NAP NAP
88 NAP 03/01/2022 1 5 No Springing Hard
93 NAP 03/01/2017 1 5 No NAP NAP
94 02/01/2007 01/01/2017 1 5 No NAP NAP
103 NAP 02/01/2017 1 5 Yes NAP NAP
104 NAP 02/01/2017 1 5 No NAP NAP
105 NAP 02/01/2017 1 5 No NAP NAP
106 NAP 12/01/2016 1 5 No NAP NAP
107 NAP 01/01/2014 1 5 No In-Place Soft, Springing Hard
115 02/01/2007 01/01/2017 1 5 No NAP NAP
116 NAP 02/01/2017 1 5 No NAP NAP
117 NAP 11/01/2016 1 5 No NAP NAP
119 03/01/2007 02/01/2017 1 5 No NAP NAP
127 NAP 01/01/2017 1 5 No In-Place Hard
Totals and Weighted
Averages:
Mortgage Original Remaining Term Original Remaining Monthly
Loan No. Term to Maturity to Maturity Amort. Term(9) Amort. Term Mortgage Rate Monthly Payment (P&I) Payment (IO)
-------- ---------------- -------------- -------------- ----------- ------------- --------------------- -------------
1 120 119 IO IO 5.690% NAP $1,009,580
2 60 57 IO IO 5.470% NAP $162,389
2 60 57 IO IO 5.470% NAP $115,992
2 60 57 IO IO 5.470% NAP $111,021
2 60 57 IO IO 5.470% NAP $100,250
2 60 57 IO IO 5.470% NAP $79,537
2 60 57 IO IO 5.470% NAP $47,225
2 60 57 IO IO 5.610% NAP $37,388
2 60 57 IO IO 5.470% NAP $26,512
4 60 58 IO IO 6.390% NAP $485,906
5 121 121 360 360 5.800% $381,389 $318,530
6 120 119 IO IO 5.463% NAP $198,476
7 180 142 240 208 6.250% $248,515 $179,543
8 120 117 360 360 5.620% $72,493 $59,830
9 120 117 360 360 5.620% $52,356 $43,210
10 120 117 360 360 5.620% $22,438 $18,519
11 120 117 360 360 5.620% $10,931 $9,022
12 60 59 IO IO 6.228% NAP $144,181
13 120 117 360 360 5.610% $146,551 $120,868
20 120 118 IO IO 5.880% NAP $87,438
30 120 119 IO IO 5.540% NAP $66,701
37 120 119 360 360 6.100% $63,023 $53,601
40 120 119 360 360 5.590% $55,051 $45,341
51 120 119 360 360 5.780% $46,838 $39,069
52 180 179 180 179 6.010% $65,019 NAP
55 120 119 360 360 5.930% $43,439 $36,575
57 120 120 360 360 5.590% $28,816 $23,733
58 120 120 360 360 5.690% $12,755 $10,577
70 120 118 360 360 5.570% $34,331 $28,237
71 120 118 360 358 5.810% $35,243 NAP
78 120 119 360 359 5.510% $30,297 NAP
80 120 119 IO IO 5.560% NAP $23,488
82 120 117 360 357 5.710% $27,890 NAP
85 120 118 360 360 5.600% $25,834 $21,292
86 120 119 360 359 5.730% $25,854 NAP
87 120 118 360 360 5.800% $25,817 $21,562
88 180 180 300 300 6.460% $28,927 NAP
93 120 120 360 360 5.530% $22,787 NAP
94 120 118 IO IO 5.600% NAP $18,926
103 120 119 360 359 5.700% $20,314 NAP
104 120 119 360 359 5.500% $19,873 NAP
105 120 119 300 299 5.750% $22,019 NAP
106 120 117 360 357 6.300% $21,664 NAP
107 84 82 360 358 5.760% $20,272 NAP
115 120 118 360 360 5.580% $17,185 $14,144
116 120 119 360 359 5.710% $17,431 NAP
117 120 116 300 296 5.820% $19,000 NAP
119 120 119 360 360 5.910% $16,626 $13,982
127 120 118 360 358 6.130% $14,590 NAP
Totals and Weighted
Average: 111 108 345 344 5.734%
Mortgage Third Most Third Most Recent Second Most Second Most Recent
Loan No. Recent NOI(10) NOI End Date Recent NOI NOI End Date Most Recent NOI Most Recent NOI End Date
-------- -------------- ----------------- ----------- ------------------ --------------- ------------------------
1 $19,107,492 12/31/2003 $15,262,125 12/31/2004 $10,906,763 12/31/2005
2 $4,272,417 12/31/2003 $4,424,364 12/31/2004 $4,834,899 12/31/2005
2 $803,037 12/31/2003 $3,143,628 12/31/2004 $3,406,835 12/31/2005
2 $3,660,684 12/31/2003 $3,728,024 12/31/2004 $3,786,052 12/31/2005
2 $2,898,727 12/31/2003 $3,035,081 12/31/2004 $3,045,886 12/31/2005
2 $2,141,293 12/31/2003 $2,279,556 12/31/2004 $2,507,293 12/31/2005
2 $1,645,420 12/31/2003 $1,605,003 12/31/2004 $1,542,739 12/31/2005
2 $1,395,417 12/31/2003 $1,416,381 12/31/2004 $1,399,387 12/31/2005
2 $833,189 12/31/2003 $906,505 12/31/2004 $863,301 12/31/2005
4 $9,508,962 12/31/2004 $7,832,103 12/31/2005 $8,256,126 T-12 (06/30/06) Xxx.
5 NAP NAP $8,101,950 12/31/2005 $7,792,658 T-10 (10/31/06) Xxx.
6 NAP NAP NAP NAP NAP NAP
7 $3,896,269 12/31/2004 $3,692,746 12/31/2005 $4,506,090 T-12 (9/30/06)
8 NAP NAP $878,416 12/31/2005 $818,782 T-8 (8/31/06) Xxx.
9 NAP NAP $592,152 12/31/2005 $551,521 T-8 (8/31/06) Xxx.
10 $292,281 12/31/2004 $314,600 12/31/2005 $322,420 T-8 (8/31/06) Xxx.
11 NAP NAP $88,215 12/31/2005 $85,476 T-8 (8/31/06) Xxx.
12 NAP NAP $2,753,706 12/31/2004 $1,186,378 12/31/2005
13 NAP NAP NAP NAP NAP NAP
20 $1,559,235 12/31/2004 $1,559,543 12/31/2005 $1,527,902 12/31/2006
30 $553,906 12/31/2004 $694,443 12/31/2005 $1,289,165 T-12 (11/30/06)
37 NAP NAP NAP NAP $278,952 T-6 (12/31/06)
40 $723,326 12/31/2004 $793,818 12/31/2005 $809,274 12/31/2006
51 NAP NAP NAP NAP $463,947 T-9 (11/30/06) Xxx.
52 NAP NAP NAP NAP NAP NAP
55 NAP NAP NAP NAP $103,408 T-5 (11/30/06) Xxx.
57 NAP NAP $325,325 12/31/2005 $358,028 T-11 (11/30/06) Xxx.
58 NAP NAP NAP NAP $210,178 T-11 (11/30/06) Xxx.
70 $615,762 12/31/2004 $553,066 12/31/2005 $504,689 12/31/2006
71 $621,396 12/31/2004 $474,421 12/31/2005 $650,871 T-12 (10/31/06)
78 $609,993 12/31/2004 $558,575 12/31/2005 $574,240 T-12 (10/31/06)
80 $453,584 12/31/2004 $496,856 12/31/2005 $445,880 T-12 (11/27/06)
82 NAP NAP NAP NAP NAP NAP
85 NAP NAP NAP NAP NAP NAP
86 NAP NAP NAP NAP NAP NAP
87 NAP NAP NAP NAP NAP NAP
88 NAP NAP NAP NAP NAP NAP
93 $257,124 12/31/2004 $296,461 12/31/2005 $365,011 12/31/2006
94 $535,266 12/31/2004 $498,589 12/31/2005 $466,167 T-10 (10/31/06) Xxx.
103 NAP NAP NAP NAP NAP NAP
104 NAP NAP NAP NAP $241,410 T-8 (8/31/06) Xxx.
105 $570,717 12/31/2004 $758,512 12/31/2005 $858,668 T-12 (11/30/06)
106 NAP NAP NAP NAP NAP NAP
107 $155,093 12/31/2004 $324,402 12/31/2005 $404,761 T-12 (9/30/06)
115 NAP NAP NAP NAP NAP NAP
116 $224,074 12/31/2004 $202,770 12/31/2005 $225,812 T-10 (10/31/06) Xxx.
117 $684,735 12/31/2004 $743,038 12/31/2005 $937,289 T-8 (8/31/06) Xxx.
119 NAP NAP NAP NAP NAP NAP
127 NAP NAP NAP NAP $229,025 T-12 (9/30/2006)
Totals and Weighted
Averages:
Mortgage
Loan No. Underwritten EGI Underwritten Expenses Underwritable NOI Underwritten Reserves Underwritable Cash Flow
-------- ---------------- --------------------- ----------------- --------------------- -----------------------
1 $27,171,572 $12,596,845 $14,574,727 $1,900,510 $12,674,217
2 $8,149,117 $2,466,421 $5,682,696 $133,000 $5,549,696
2 $5,611,295 $1,616,078 $3,995,217 $82,000 $3,913,217
2 $5,448,712 $1,963,029 $3,485,683 $116,750 $3,368,933
2 $4,540,703 $1,693,310 $2,847,392 $102,000 $2,745,392
2 $4,180,386 $1,237,938 $2,942,448 $70,750 $2,871,698
2 $2,781,557 $1,058,304 $1,723,253 $54,500 $1,668,753
2 $2,413,462 $836,404 $1,577,058 $52,500 $1,524,558
2 $1,606,782 $550,579 $1,056,203 $33,500 $1,022,703
4 $20,958,915 $10,723,959 $10,234,956 $1,001,445 $9,233,510
5 $11,563,688 $5,564,113 $5,999,576 $678,834 $5,320,742
6 $4,668,615 $1,468,959 $3,199,656 $99,795 $3,099,861
7 $6,883,766 $2,191,360 $4,692,406 $551,035 $4,141,371
8 $1,600,979 $686,263 $914,716 $13,800 $900,916
9 $1,006,536 $352,593 $653,943 $12,000 $641,943
10 $586,178 $262,627 $323,551 $9,400 $314,151
11 $322,222 $174,564 $147,658 $6,500 $141,158
12 $3,330,739 $1,102,699 $2,228,040 $324,849 $1,903,191
13 $3,431,868 $1,351,136 $2,080,732 $58,328 $2,022,404
20 $1,946,308 $425,646 $1,520,662 $79,550 $1,441,112
30 $1,908,995 $502,200 $1,406,795 $91,669 $1,315,126
37 $1,225,823 $280,921 $944,902 $38,488 $906,414
40 $1,081,645 $289,755 $791,890 $42,067 $749,823
51 $930,749 $180,159 $750,590 $50,275 $700,315
52 $1,895,845 $783,536 $1,112,309 $57,690 $1,054,619
55 $875,597 $181,330 $694,267 $37,744 $656,524
57 $596,921 $145,342 $451,579 $52,569 $399,010
58 $304,835 $74,814 $230,021 $16,750 $213,271
70 $1,129,543 $588,214 $541,329 $35,250 $506,079
71 $937,883 $332,145 $605,738 $52,915 $552,823
78 $981,924 $405,219 $576,705 $67,605 $509,100
80 $764,605 $322,655 $441,950 $12,236 $429,714
82 $420,000 $12,600 $407,400 $0 $407,400
85 $532,489 $97,819 $434,670 $20,160 $414,510
86 $507,882 $112,285 $395,597 $15,200 $380,397
87 $621,034 $214,397 $406,637 $9,000 $397,637
88 $443,929 $15,318 $428,611 $5,826 $422,785
93 $646,200 $259,357 $386,843 $57,490 $329,354
94 $550,735 $123,935 $426,800 $47,194 $379,606
103 $392,027 $108,790 $283,237 $8,248 $274,990
104 $423,990 $144,504 $279,487 $5,500 $273,987
105 $1,908,967 $1,210,212 $698,755 $76,359 $622,396
106 $456,466 $104,559 $351,907 $17,372 $334,535
107 $493,115 $168,683 $324,432 $20,090 $304,342
115 $254,625 $6,296 $248,329 $0 $248,329
116 $462,384 $211,370 $251,014 $11,397 $239,617
117 $1,978,157 $1,242,620 $735,537 $44,528 $691,009
119 $302,559 $50,116 $252,442 $12,928 $239,515
127 $309,871 $86,742 $223,128 $14,082 $209,046
Totals and Weighted
Averages:
Cooperative Loans
------------------------------------------
Mortgage Unsold
Loan No. Balloon Balance Current Value(11) Source of Value Valuation Date Rental Value(12) LTV as Rental Percent
-------- --------------- ----------------- --------------- -------------- ---------------- ------------- -------
1 $210,000,000 $279,200,000 Appraisal 11/28/2006 NAP NAP NAP
2 $35,136,585 $129,000,000 Appraisal 08/01/2006 NAP NAP NAP
2 $25,097,561 $94,800,000 Appraisal 08/01/2006 NAP NAP NAP
2 $24,021,951 $92,100,000 Appraisal 08/01/2006 NAP NAP NAP
2 $21,691,463 $75,600,000 Appraisal 08/01/2006 NAP NAP NAP
2 $17,209,756 $61,500,000 Appraisal 08/01/2006 NAP NAP NAP
2 $10,218,293 $35,600,000 Appraisal 08/01/2006 NAP NAP NAP
2 $7,887,805 $32,300,000 Appraisal 08/04/2006 NAP NAP NAP
2 $5,736,585 $20,000,000 Appraisal 08/01/2006 NAP NAP NAP
4 $90,000,000 $142,000,000 Appraisal 12/01/2006 NAP NAP NAP
5 $60,642,643 $86,700,000 Appraisal 12/14/2006 NAP NAP NAP
6 $43,000,000 $55,500,000 Appraisal 01/03/2007 NAP NAP NAP
7 $14,025,571 $54,000,000 Appraisal 03/01/2007 NAP NAP NAP
8 $11,745,126 $18,100,000 Appraisal 10/30/2006 NAP NAP NAP
9 $8,482,591 $12,500,000 Appraisal 10/26/2006 NAP NAP NAP
10 $3,635,396 $5,500,000 Appraisal 10/25/2006 NAP NAP NAP
11 $1,771,091 $3,000,000 Appraisal 10/25/2006 NAP NAP NAP
12 $27,400,000 $35,100,000 Appraisal 12/18/2006 NAP NAP NAP
13 $23,766,619 $37,400,000 Appraisal 10/30/2006 NAP NAP NAP
20 $17,600,000 $26,100,000 Appraisal 11/22/2006 NAP NAP NAP
30 $14,250,000 $20,450,000 Appraisal 12/01/2006 NAP NAP NAP
37 $9,250,090 $14,500,000 Appraisal 11/01/2006 NAP NAP NAP
40 $8,440,341 $13,500,000 Appraisal 12/22/2006 NAP NAP NAP
51 $7,064,557 $11,520,000 Appraisal 11/15/2006 NAP NAP NAP
52 $167,640 $13,000,000 Appraisal 12/11/2006 NAP NAP NAP
55 $6,831,629 $11,600,000 Appraisal 12/08/2006 NAP NAP NAP
57 $4,421,351 $6,800,000 Appraisal 01/02/2007 NAP NAP NAP
58 $1,940,250 $3,200,000 Appraisal 01/02/2007 NAP NAP NAP
70 $5,587,989 $7,900,000 Appraisal 12/01/2006 NAP NAP NAP
71 $5,069,578 $9,000,000 Appraisal 09/01/2006 NAP NAP NAP
78 $4,462,462 $8,600,000 Appraisal 12/01/2006 NAP NAP NAP
80 $5,000,000 $7,800,000 Appraisal 11/21/2006 NAP NAP NAP
82 $4,044,605 $6,300,000 Appraisal 06/01/2007 NAP NAP NAP
85 $3,957,609 $6,200,000 Appraisal 10/04/2006 NAP NAP NAP
86 $3,742,170 $6,400,000 Appraisal 11/17/2006 NAP NAP NAP
87 $4,110,732 $6,700,000 Appraisal 11/23/2006 NAP NAP NAP
88 $2,658,524 $6,900,000 Appraisal 02/01/2007 NAP NAP NAP
93 $3,353,889 $6,900,000 Appraisal 11/30/2006 NAP NAP NAP
94 $4,000,000 $6,500,000 Appraisal 11/30/2006 NAP NAP NAP
103 $2,947,256 $5,400,000 Appraisal 11/30/2006 NAP NAP NAP
104 $2,929,423 $5,500,000 Appraisal 11/30/2006 NAP NAP NAP
105 $2,695,639 $8,000,000 Appraisal 12/08/2006 NAP NAP NAP
106 $3,000,388 $4,600,000 Appraisal 09/07/2006 NAP NAP NAP
107 $3,125,655 $4,950,000 Appraisal 10/25/2006 NAP NAP NAP
115 $2,794,381 $4,300,000 Appraisal 12/01/2006 NAP NAP NAP
116 $2,526,978 $4,100,000 Appraisal 11/13/2006 NAP NAP NAP
117 $2,316,377 $7,200,000 Appraisal 08/17/2006 NAP NAP NAP
119 $2,479,896 $3,500,000 Appraisal 10/02/2006 NAP NAP NAP
127 $2,046,879 $3,400,000 Appraisal 08/30/2006 NAP NAP NAP
Totals and Weighted
Averages:
Cooperative Loans
------------------------------------------------------------
Mortgage Sponsor/
Loan No. Sponsor Units Investor Units Coop Units Investor Carry Largest Tenant(13) Lease Expiration Date
-------- ------------- -------------- ---------- -------------- ------------------------------ ---------------------
1 NAP NAP NAP NAP Xxxxxxx & Xxxxxx 03/01/2008
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP NAP
4 NAP NAP NAP NAP Cabela's 04/30/2022
5 NAP NAP NAP NAP AT&T 06/30/2011
6 NAP NAP NAP NAP ICW 12/31/2016
7 NAP NAP NAP NAP Xxxxx Enterprises, Inc 02/28/2011
8 NAP NAP NAP NAP NAP NAP
9 NAP NAP NAP NAP NAP NAP
10 NAP NAP NAP NAP NAP NAP
11 NAP NAP NAP NAP NAP NAP
12 NAP NAP NAP NAP GSA 01/31/2011
13 NAP NAP NAP NAP Mill Run Tours 02/29/2008
20 NAP NAP NAP NAP Big K-mart 10/31/2022
30 NAP NAP NAP NAP Regal Cinema 11/30/2023
37 NAP NAP NAP NAP NAP NAP
40 NAP NAP NAP NAP ReMax Realty 08/31/2011
51 NAP NAP NAP NAP St. Xxxxxxx xx Xxxx MTM
52 NAP NAP NAP NAP Xxxx Theatres III, LLC 12/31/2025
55 NAP NAP NAP NAP Sleep Country USA 09/22/2012
57 NAP NAP NAP NAP Novum Pharmaceutical 06/30/2009
58 NAP NAP NAP NAP Best Cycle Parts 09/30/2007
70 NAP NAP NAP NAP NAP NAP
71 NAP NAP NAP NAP Oak Hill Hardware, Inc. (Ace) 03/31/2009
78 NAP NAP NAP NAP University Radiology Group, PC 12/31/2016
80 NAP NAP NAP NAP
82 NAP NAP NAP NAP CVS Xxxxxx, X.X. 01/31/2026
85 NAP NAP NAP NAP PNC Bank 10/31/2021
86 NAP NAP NAP NAP Washington Health Club 07/01/2016
87 NAP NAP NAP NAP Thrifty Payless, Inc. 12/31/2026
88 NAP NAP NAP NAP NAP NAP
93 NAP NAP NAP NAP Rite Aid 02/07/2027
94 NAP NAP NAP NAP Advanced Endoscopy 12/31/2013
103 NAP NAP NAP NAP AGIA 12/31/2010
104 NAP NAP NAP NAP Uncle Abie's Deli Inc. 12/31/2026
105 NAP NAP NAP NAP NAP NAP
106 NAP NAP NAP NAP NAP NAP
107 NAP NAP NAP NAP Piropos 10/31/2019
115 NAP NAP NAP NAP Ametek 11/01/2015
116 NAP NAP NAP NAP Commerce Bank 10/10/2031
117 NAP NAP NAP NAP NAP NAP
119 NAP NAP NAP NAP NAP NAP
127 NAP NAP NAP NAP Salon 06/30/2011
Tractor Supply 06/30/2020
Totals and Weighted
Averages:
Mortgage Lease
Loan No. % NSF Second Largest Tenant Expiration Date % NSF Third Largest Tenant
-------- ----- --------------------------- --------------- ---------- --------------------------------------------
1 9.9% Sherin and Lodgen 07/01/2014 5.1% HQ Global Workplaces
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
2 NAP NAP NAP NAP NAP
4 11.1% Regal Cinemas 12/16/2018 6.9% Burlington Coat Factory
5 39.2% Utility Engineering Corp. 08/31/2011 8.9% Navitaire Inc.
6 39.9% American Assets 07/31/2016 11.9% Mission Ventures Operating Co.
7 44.0% NYX, Inc 02/28/2014 9.4% Virginia Title Company
8 NAP NAP NAP NAP NAP
9 NAP NAP NAP NAP NAP
10 NAP NAP NAP NAP NAP
11 NAP NAP NAP NAP NAP
12 36.3% Time Warner Cable Inc. 04/30/2009 33.7% Xxxxxx-Xxxx and Associates, Inc.
13 13.5% Xxxxx Xxxxx & Associates 03/31/2009 6.7% NY Musculo-Skeletal, P.C.
20 100.0% NAP NAP NAP NAP
30 49.6% Tractor Supply Co. 01/01/2021 17.9% Funworks
37 NAP NAP NAP NAP NAP
40 23.4% Blockbuster Video 06/30/2008 12.7% Honey Baked Ham
51 13.7% DOC and CPS 05/31/2012 7.5% Xxxx Tools
52 100.0% NAP NAP NAP NAP
55 24.3% The Rock Wood Fired Pizza 11/24/2016 19.5% Panda Express
57 92.6% Weststar Credit 11/30/2007 7.4% NAP
58 28.5% P.T. Gaming, LLC 12/31/2007 25.6% Handy Cash Loan Center
70 NAP NAP NAP NAP NAP
71 13.7% Family Dollar, Inc. 06/30/2010 7.7% United States Post Office
78 60.7% Contemporary Plastic Surgery
Associates, L.L.C. 06/30/2009 12.0% Highland Park Medical Associates, P.A.
80 45.1% Home Town Buffet 12/31/2018 35.3% Cingular Wireless PCS, LLC
82 100.0% NAP NAP NAP NAP
85 33.3% Catfish Lewie's 08/31/2016 13.3% Black Belt College
86 100.0% NAP NAP NAP NAP
87 NAP NAP NAP NAP NAP
88 100.0% NAP NAP NAP NAP
93 21.6% Monmouth Gastroenterology 12/31/2014 15.3% Women's Health Alliance
94 100.0% NAP NAP NAP NAP
103 27.3% NAP NAP NAP NAP
104 NAP NAP NAP NAP NAP
105 NAP NAP NAP NAP NAP
106 55.8% Prairiebrooke Arts 09/30/2013 21.2% Bells Flowers
107 65.7% ABC Rentals 12/01/2015 34.3% NAP
115 100.0% NAP NAP NAP NAP
116 NAP NAP NAP NAP NAP
117 NAP NAP NAP NAP NAP
119 22.2% Xxx Xxx'x BBQ 09/30/2010 20.9% Japanese Restaurant
127 100.0% NAP NAP NAP NAP
Totals and Weighted
Averages:
Mortgage Lease Insurance Tax Escrow Capital Expenditure TI/LC Escrow Other Escrow
Loan No. Expiration Date % NSF Escrow in Place in Place(14) Escrow in Place(15) in Place(16) Description(17)
-------- --------------- ----- --------------- ------------ ------------------- ------------ --------------------------
1 09/01/2016 4.8% No No Yes Yes NAP
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
2 NAP NAP Yes Yes Yes No Debt Service Shortfall
4 01/31/2014 6.6% Yes Yes Yes Yes Travelers Indemnity
reserve of $2,500,000;
TDD reserve of $3,500,000
5 01/31/2008 7.8% No Yes No Yes NAP
6 06/30/2012 5.0% No Yes No No NAP
7 06/30/2017 9.2% No Yes No Yes Debt Service Shortfall
Reserve
8 NAP NAP No Yes No No Master Lease Holdback
Reserve
9 NAP NAP No Yes No No Master Lease Holdback
Reserve
10 NAP NAP No Yes No No NAP
11 NAP NAP No Yes No No Master Lease Holdback
Reserve
12 01/31/2011 17.4% Yes Yes Yes Yes Debt Service Reserve
13 12/31/2013 6.7% No Yes Yes No Interest Escrow LOC
20 NAP NAP No No No No NAP
30 09/30/2011 5.8% No No No No NAP
37 NAP NAP Yes Yes No No Vacant Space Reserve
($224,000); Windermere
TILC Reserve ($119,375);
Holdback ($600,000)
40 03/31/2011 9.1% No No No No NAP
51 12/31/2013 7.3% Yes Yes Yes Yes Facade Escrow ($360,000);
Whataburger ($250,000);
Taco Xxxx ($1,000,000);
Leasing Reserve
($750,000)
52 NAP NAP No No No No NAP
55 07/14/2026 9.5% Yes Yes No Yes Outstanding TI Reserve
57 NAP NAP No Yes Yes Yes NAP
58 01/31/2010 11.7% No Yes Yes Yes NAP
70 NAP NAP No Yes Yes No NAP
71 07/31/2011 7.1% No Yes Yes Yes NAP
78 06/30/2014 8.5% No Yes No No NAP
02/28/2013 11.3% No No No No NAP
80 NAP NAP No No No No PNC Bank Reserve
82 08/31/2016 13.3% Yes Yes Yes Yes NAP
85 NAP NAP No No No No NAP
86 NAP NAP Yes Yes No No NAP
87 NAP NAP No No Yes No NAP
88 10/31/2008 9.8% Yes Yes Yes Yes NAP
93 NAP NAP No Yes Yes No NAP
94 NAP NAP No Yes Yes Yes NAP
103 NAP NAP No Yes Yes No NAP
104 NAP NAP No Yes No No NAP
105 10/31/2011 10.8% Yes Yes Yes Yes Vacancy Holdback Reserve
106 NAP NAP Yes Yes Yes Yes NAP
107 NAP NAP No No No No NAP
115 NAP NAP Yes Yes Yes No NAP
116 NAP NAP No No No No NAP
117 01/12/2012 18.5% No Yes Yes Yes Holdback
119 NAP NAP No No No No NAP
127
Totals and Weighted
Averages:
Initial Capital Monthly Capital Current Capital
Mortgage Expenditure Expenditure Expenditure
Loan No. Springing Escrow Description(18) Escrow Requirement(19) Escrow Requirement(20) Escrow Balance (21)
-------- -------------------------------------- ---------------------- ---------------------- --------------------
1 RE Tax, Insurance , TI/LC $0 $13,500 $0
2 Insurance $12,222 $11,082 $12,222
2 Insurance $8,730 $6,832 $8,730
2 Insurance $8,356 $9,728 $8,356
2 Insurance $7,545 $8,499 $7,545
2 Insurance $5,986 $5,895 $5,986
2 Insurance $4,542 $4,541 $4,542
2 Insurance $4,375 $4,374 $0
2 Insurance $1,995 $2,791 $1,995
4 NAP $0 $20,322 $0
5 TI/LC $0 $0 $0
6 Insurance $0 $0 $0
7 NAP $0 $0 $0
8 Insurance, CapEx $0 $0 $0
9 Insurance, CapEx $0 $0 $0
10 Insurance, CapEx $0 $0 $0
11 Insurance, CapEx $0 $0 $0
12 TI/LC $0 $2,627 $0
13 Insurance, TI/LC $0 $1,077 $1,077
20 RE Tax, Insurance, CapEx, TI/LC $0 $0 $0
30 RE Tax, Insurance, TI/LC $0 $0 $0
37 CapEx, TI/LC $0 $0 $0
40 RE Tax, Other $0 $0 $0
51 TI/LC $0 $546 $0
52 RE Tax, Insurance, CapEx, TI/LC $0 $0 $0
55 CapEx, TI/LC $0 $0 $0
57 Insurance, TI/LC $0 $495 $0
58 Insurance, TI/LC $0 $300 $0
70 Insurance $0 $2,855 $0
71 RE Tax, Insurance, TI/LC $0 $1,050 $0
78 Insurance, TI/LC $0 $0 $0
80 RE Tax, Insurance, CapEx, TI/LC $0 $0 $0
82 TI/LC $0 $0 $0
85 TI/LC $0 $300 $0
86 RE Tax, Insurance, CapEx, TI/LC, Other $0 $0 $0
87 NAP $0 $0 $0
88 RE Tax, Insurance $0 $182 $0
93 TI/LC $0 $457 $0
94 TI/LC $0 $412 $0
103 Insurance, TI/LC $0 $194 $0
104 Insurance $0 $458 $0
105 Insurance, CapEx $0 $0 $0
106 TI/LC $0 $155 $0
107 TI/LC $0 $513 $0
115 RE Tax, Insurance, CapEx $0 $0 $0
116 NAP $0 $950 $0
117 RE Tax, Insurance, CapEx $0 $0 $0
119 Insurance, TI/LC $0 $160 $0
127 RE Tax, Insurance, CapEx, TI/LC, Other $0 $0 $0
Totals and Weighted
Averages:
Mortgage Initial TI/LC Escrow Monthly TI/LC Current TI/LC Environmental Interest
Loan No. Requirement (22) Escrow Requirement(23) Escrow Balance(24) Insurance Accrual Method Seasoning(25)
-------- -------------------- ---------------------- ------------------ ------------- -------------- -------------
1 $5,000,000 $0 $0 No Actual/360 1
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
2 $0 $0 $0 No Actual/360 3
4 $17,700,000 $0 $17,700,000 No Actual/360 2
5 $3,500,000 $0 $3,500,000 No Actual/360 0
6 $0 $0 $0 No Actual/360 1
7 $50,000 $45,833 $599,652 No 30/360 38
8 $0 $0 $0 No Actual/360 3
9 $0 $0 $0 No Actual/360 3
10 $0 $0 $0 No Actual/360 3
11 $0 $0 $0 No Actual/360 3
12 $225,000 $26,792 $0 No Actual/360 1
13 $0 $0 $0 No Actual/360 3
20 $0 $0 $0 No Actual/360 2
30 $0 $0 $0 No Actual/360 1
37 $0 $0 $0 No Actual/360 1
40 $0 $0 $0 No Actual/360 1
51 $0 $2,083 $0 No Actual/360 1
52 $0 $0 $0 No Actual/360 1
55 $0 $1,667 $0 No Actual/360 1
57 $279,000 (LOC) $0 $279,000 (LOC) No Actual/360 0
58 $200,000 (LOC) $0 $200,000 (LOC) No Actual/360 0
70 $0 $0 $0 No Actual/360 2
71 $50,000 $6,999 $50,000 No Actual/360 2
78 $0 $0 $0 No Actual/360 1
80 $0 $0 $0 No Actual/360 1
82 $0 $0 $0 No Actual/360 3
85 $0 $1,410 $0 No Actual/360 2
86 $0 $0 $0 No Actual/360 1
87 $0 $0 $0 No Actual/360 2
88 $0 $0 $0 No Actual/360 0
93 $0 $1,712 $0 No Actual/360 0
94 $0 $0 $0 No Actual/360 2
103 $0 $353 $0 No Actual/360 1
104 $0 $0 $0 No Actual/360 1
105 $0 $0 $0 No Actual/360 1
106 $0 $1,250 $0 No Actual/360 3
107 $0 $2,000 $0 No Actual/360 2
115 $0 $0 $0 No Actual/360 2
116 $0 $0 $0 No Actual/360 1
117 $0 $0 $0 No Actual/360 4
119 $0 $533 $0 No Actual/360 1
127 $0 $0 $0 No Actual/360 2
Totals and Weighted
Averages:
Prepayment Code(25)
---------------------------------------------------------------------
Mortgage Administrative Mortgage
Loan No. LO DEF DEF/YM1 YM3 YM1 3% 2% 1% Open YM Formula(27) Cost Rate (28) Loan No.
-------- -- --- ------- --- --- - - - ---- -------------- ------------- --------
1 25 91 4 A 2.085 1
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
2 27 29 4 2.085 2
4 26 32 2 2.085 4
5 24 96 1 2.085 5
6 25 90 5 2.085 6
7 59 117 4 B 2.085 7
8 27 89 4 2.085 8
9 27 89 4 2.085 9
10 27 89 4 2.085 10
11 27 89 4 2.085 11
12 23 23 2 12 C 2.085 12
13 27 89 4 2.085 13
20 26 90 4 8.085 20
30 47 69 4 E 6.085 30
37 25 91 4 2.085 37
40 25 91 4 6.085 40
51 25 91 4 8.085 51
52 25 151 4 7.085 52
55 25 91 4 2.085 55
57 24 92 4 2.085 57
58 24 92 4 2.085 58
70 26 87 7 7.085 70
71 26 90 4 7.085 71
78 25 91 4 2.085 78
80 25 90 5 I 2.085 80
82 27 89 4 2.085 82
85 26 90 4 2.085 85
86 25 91 4 2.085 86
87 26 81 13 9.085 87
88 24 152 4 2.085 88
93 24 94 2 2.085 93
94 26 33 61 2.085 94
103 25 88 7 J 2.085 103
104 25 88 7 K 2.085 104
105 25 88 7 2.085 105
106 27 89 4 L 2.085 106
107 26 54 4 2.085 107
115 26 90 4 8.085 115
116 25 91 4 2.085 116
117 28 88 4 E 2.085 117
119 25 91 4 2.085 119
127 26 90 4 2.085 127
Totals and Weighted
Averages:
SCHEDULE II
NATIXIS LOAN SCHEDULE
[see attached]
DISCLAIMER
Prospective investors are advised to read carefully, and should rely solely on,
the Prospectus Supplement dated March 22, 2007, and accompanying Prospectus
dated February 6, 2007 (together, the "Prospectus") relating to the Certificates
referred to below in making their investment decision.
This diskette accompanies and is a part of the Prospectus relating to the
Commercial Mortgage Pass-Through Certificates Series 2007-IQ13 (the
"Certificates"). The information set forth on this diskette is an electronic
copy of the information set forth in Appendix II labeled "Certain
Characteristics of the Mortgage Loans" in the Prospectus. This diskette should
be reviewed only in conjunction with the entire Prospectus. This diskette does
not contain all relevant information relating to the Certificates. Such
information is described elsewhere in the Prospectus.
Methodologies used in deriving certain information contained on this diskette
are more fully described elsewhere in the Prospectus.
The information on this diskette should not be viewed as projections, forecasts,
predictions or opinions with respect to value.
IMPORTANT NOTICE RELATING TO AUTOMATICALLY GENERATED EMAIL DISCLAIMERS Any
legends, disclaimers or other notices that may appear at the bottom of, or
attached to, the email communication to which this material may have been
attached are not applicable to these materials and should be disregarded. Such
legends, disclaimers or other notices have been automatically generated as a
result of these materials having been sent via Bloomberg or another email
system.
APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Mortgage
Loan No. CMSA Loan No. CMSA Property No. Loan Seller(1) Property Name(2) Loan Group
-------- ------------- ----------------- -------------- ------------------------------------------------ ----------
3 3 0-000 Xxxxxxx Xxxxxxx I 1
14 14-001 Natixis Xxxxxxx Xxxxx Plaza 1
14 14-002 Natixis Xxxxxxxxxx Xxxxx 0
00 00-000 Xxxxxxx Xxxxxxx Xxxxxxxx 0
00 00-000 Xxxxxxx 000-000 X. Xxxxx Xxxxxx 1
14 14-005 Natixis Harlem & Milwaukee 1
14 14-006 Natixis 0000-0000 X. Xxxxxxx Xxx 1
14 14-007 Natixis Central Building 1
15 15 15-001 Natixis Xxxxx Xxxx Xxxxxxxx Xxxxxx 0
00 00 00-000 Xxxxxxx Plaza Continental 1
17 17 17-001 Natixis West Covina Parkway 1
19 19 19-001 Natixis Giant Foods 1
24 24 24-001 Natixis Country Club Centre - Xxxxx 1
25 25 25-001 Natixis Main Street Crossing - Xxxxx 1
26 26 26-001 Natixis Shoppes at Lakewood - Xxxxx 1
28 28 28-001 Natixis Down Under 2
29 29-001 Natixis 000 X. Xxxxxxxx Xx. 2
29 29-002 Natixis 0000-00 Xxxxxxxx Xx. 2
29 29-003 Natixis 0000-00 Xxxxxx Xx. 2
29 29-004 Natixis 000 X. Xxxxx Xxx. 2
29 29-005 Natixis 000 X. Xxxxxxxx Xx. 0
00 00-000 Xxxxxxx 000 Xxxxxx Xx. 0
00 00-000 Xxxxxxx 000 X. Xxxxxxxx Xxx. 2
33 33 33-001 Natixis Pan Western 1
34 34 34-001 Natixis Pacifica II - Sandcastle Inn 1
36 36 36-001 Natixis Renaissance Hotel 1
38 38 38-001 Natixis Pico & Main 1
43 43 43-001 Natixis Airport Industrial Park East & West 1
46 46-001 Natixis 0000 X Xxxxxxxx 0
00 00-000 Xxxxxxx 000 X Xxxxxxx 0
00 00 00-000 Xxxxxxx Xxxx Xxx Plaza 1
54 54 54-001 Natixis 385 Clinton 1
59 59 59-001 Natixis Pacifica II - Holiday Inn Express Marina Del Rey 1
60 60 60-001 Natixis Kempsville Marketplace 1
61 61 61-001 Natixis Pacifica II - Inn at Venice 1
62 62 62-001 Natixis Shadow Medical 1
67 67 67-001 Natixis Kohl's NC 1
68 68 68-001 Natixis Southern Crescent 1
69 69 69-001 Natixis Hampton Inn - Fairburn 1
73 73 73-001 Natixis Water Street Plaza (ADF) 1
74 74 74-001 Natixis Springbrook Estates 2
77 77 77-001 Natixis 0000 Xxxxxxxxx Xxxx 1
79 79 79-001 Natixis Lowe's Ground Lease 1
84 84 84-001 Natixis Westwood Square (ADF) 1
91 91 91-001 Natixis Regency Plaza 1
95 95 95-001 Natixis Park Xxxxx Xxxxxxxx Xxxxxx 0
00 00 00-000 Xxxxxxx 0000 Xxxxx Xxxxxx 2
101 101 000-000 Xxxxxxx XXX Building 1
112 112 112-001 Natixis 610 X. Xxxxxxxxx Student Housing 2
114 114 114-001 Natixis Santa Xxxx Plaza 1
Totals and Weighted Averages:
Mortgage Cross-Collater- Cut-Off Date Post IO Period Cut-Off Balloon
Loan No. alization(2) Original Balance Balance(3) NOI DSCR(4) NCF DSCR(4) NCF DSCR(4) Date LTV(4) LTV(4)
-------- --------------- ---------------- ------------ ----------- ----------- -------------- ----------- -------
3 No $95,000,000 $95,000,000 1.46 1.34 1.17 76.3% 68.4%
14 No $7,676,343 $7,676,343 1.59 1.49 1.25 62.4% 58.2%
14 No $5,679,245 $5,679,245 1.59 1.49 1.25 62.4% 58.2%
14 No $2,683,599 $2,683,599 1.59 1.49 1.25 62.4% 58.2%
14 No $2,433,962 $2,433,962 1.59 1.49 1.25 62.4% 58.2%
14 No $1,185,776 $1,185,776 1.59 1.49 1.25 62.4% 58.2%
14 No $1,029,753 $1,029,753 1.59 1.49 1.25 62.4% 58.2%
14 No $811,321 $811,321 1.59 1.49 1.25 62.4% 58.2%
15 No $21,000,000 $21,000,000 1.53 1.45 1.22 60.0% 56.1%
16 No $21,000,000 $21,000,000 1.51 1.47 1.21 70.0% 65.1%
17 No $20,900,000 $20,900,000 1.49 1.42 1.17 69.9% 65.0%
19 No $20,000,000 $20,000,000 1.31 1.31 1.10 80.0% 71.9%
24 Yes $6,150,000 $6,150,000 1.67 1.54 1.28 76.0% 68.3%
25 Yes $4,950,000 $4,950,000 1.67 1.54 1.28 76.0% 68.3%
26 Yes $4,900,000 $4,900,000 1.67 1.54 1.28 76.0% 68.3%
28 No $15,500,000 $15,500,000 1.61 1.56 1.30 74.9% 66.0%
29 No $4,157,150 $4,157,150 1.55 1.50 NAP 66.5% 66.5%
29 No $3,368,725 $3,368,725 1.55 1.50 NAP 66.5% 66.5%
29 No $1,992,565 $1,992,565 1.55 1.50 NAP 66.5% 66.5%
29 No $1,605,520 $1,605,520 1.55 1.50 NAP 66.5% 66.5%
29 No $1,204,140 $1,204,140 1.55 1.50 NAP 66.5% 66.5%
29 No $1,075,125 $1,075,125 1.55 1.50 NAP 66.5% 66.5%
29 No $931,775 $931,775 1.55 1.50 NAP 66.5% 66.5%
33 No $12,000,000 $12,000,000 1.45 1.43 NAP 55.1% 46.8%
34 No $11,900,000 $11,900,000 2.33 2.14 NAP 56.4% 56.4%
36 No $10,800,000 $10,800,000 1.76 1.42 NAP 68.4% 57.5%
38 No $10,000,000 $10,000,000 1.33 1.25 NAP 66.2% 60.4%
43 No $9,000,000 $8,988,083 1.27 1.15 NAP 74.3% 63.1%
46 No $5,184,000 $5,184,000 1.61 1.58 NAP 67.9% 67.9%
46 No $3,456,000 $3,456,000 1.61 1.58 NAP 67.9% 67.9%
49 No $8,250,000 $8,250,000 1.58 1.51 1.27 64.5% 58.1%
54 No $7,500,000 $7,500,000 1.53 1.45 1.20 62.5% 58.1%
59 No $7,100,000 $7,100,000 2.62 2.35 NAP 64.6% 64.6%
60 No $7,100,000 $7,100,000 1.57 1.44 NAP 65.7% 65.7%
61 No $6,500,000 $6,500,000 2.33 2.12 NAP 59.6% 59.6%
62 No $6,500,000 $6,500,000 1.74 1.57 NAP 61.3% 61.3%
67 No $6,200,000 $6,200,000 1.10 1.10 NAP 76.8% 64.2%
68 No $6,170,000 $6,170,000 1.61 1.47 1.23 70.1% 61.8%
69 No $6,000,000 $6,000,000 1.45 1.30 NAP 63.8% 41.8%
73 No $5,800,000 $5,800,000 1.52 1.45 1.22 73.4% 68.5%
74 No $5,700,000 $5,700,000 1.52 1.50 1.23 69.3% 64.5%
77 No $5,350,000 $5,350,000 1.48 1.40 1.17 65.7% 61.3%
79 No $5,000,000 $5,000,000 3.27 3.27 2.51 56.6% 49.5%
84 No $4,600,000 $4,600,000 1.38 1.29 1.07 72.3% 67.4%
91 No $4,100,000 $4,100,000 1.51 1.38 NAP 55.4% 55.4%
95 No $3,800,000 $3,800,000 1.53 1.44 1.22 73.8% 68.9%
99 No $3,630,000 $3,630,000 1.31 1.24 NAP 78.9% 78.9%
101 No $3,500,000 $3,500,000 2.20 2.17 NAP 48.6% 37.4%
112 No $3,075,000 $3,068,456 1.22 1.19 NAP 74.8% 63.8%
114 No $3,000,000 $3,000,000 2.10 1.97 NAP 43.5% 43.5%
Totals and Weighted Averages: $416,450,000 $416,431,538 1.64x 1.55x 1.27x 66.4% 61.7%
Mortgage
Loan No. Street Address City State Zip Code Property Type
-------- ------------------------------------------------------ -------------- ----- -------- ----------------------------
3 One Gateway Center / 0-00 Xxxxxxx Xxxx. Xxxxxx XX 00000 Office
14 00-000 X Xxxxx Xxx Xxxx Xxxxxxx XX 00000 Retail
14 000 X. Xxx Xxxxx Xxxxxxx XX 00000 Xxxxxx
00 0000 X. Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Mixed Use
14 000-000 X. Xxxxx Xxxxxx Xxxxxxx XX 00000 Retail
14 0000-0000 X. Xxxxxxxxx Xxxxxxx XX 00000 Retail
14 0000-0000 X. Xxxxxxx Xxx Xxxxxxx Xxxx XX 00000 Retail
14 0000-0000 Xxxxx Xxxxxxx Xxx Xxxxxxx XX 00000 Mixed Use
15 000 Xxxx Xxxxxxxxxx Xxxxxxxxx Xxxxx Xxxx XX 00000 Retail
16 0000-0000 Xxxxxx Empire Boulevard & 3550, 3640 and
0000 Xxxxxxx Xxx Xxxxxxx XX 00000 Retail
17 0000-0000 Xxxx Xxxxxx Xxxxxxxxx Xxxx Xxxxxx XX 00000 Retail
19 000 Xxxx Xxxx Xxxxxx Xxxxx XX 00000 Retail
24 0000 Xxxxxx Xxxx Xx. Xxxxxxxxxx XX 00000 Retail
25 0000-0000 Xxxx Xxxxxxxxx Xxxx. Xxxxxxx XX 00000 Retail
26 0000 Xxxxxx Xxxx Xx. Xxxxxx XX 00000 Retail
28 0000 Xxx Xxxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 Multifamily
29 000 X. Xxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 Multifamily
29 0000-00 Xxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 Multifamily
29 0000-00 Xxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
29 000 X. Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
29 000 X. Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
29 000 Xxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
29 000 X. Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
33 0000 Xxxxxxx Xxx Xxx Xxxxx XX 00000 Industrial
34 000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 Hospitality
36 000 Xxxxx Xxxx Xxxxxx XxXxxxx XX 00000 Hospitality
38 0000-0000 X. Xxxx Xxxxxx & 0000 X. Xxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Mixed Use
43 14600 & 00000 Xxxxx Xxxxx Xxxx Xxxxxxxxxxxx XX 00000 Industrial
46 0000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
46 000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
49 0000 Xxxxxxx Xxx. Xxxx Xxx XX 00000 Retail
54 000 Xxxxxxx Xxxxxx Xxxxx Xxxx XX 00000 Industrial
59 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx Xxx Xxx XX 00000 Hospitality
60 4872, 4876 & 0000 Xxxxxxxx Xxxx Xxxx Xxxxxxxx Xxxxx XX 00000 Retail
61 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000 Hospitality
62 000 Xxxxxx Xxxx Xxx Xxxxx XX 00000 Office
67 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxx Xxxx XX 00000 Retail
68 00 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Xxxxxx
00 0000 Xxxx Xxxx Xxxxxxxx XX 00000 Hospitality
73 000-000 X. Xxxxx Xxxxxx Xxxxx Xx XX 00000 Retail
74 0000 Xxxxx Xxxxxxxxxxx Xxxx Xxxxxxx XX 00000 Manufactured Housing
Community
77 0000 Xxxxxxxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Retail
79 0000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 Retail
84 000 Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 Mixed Use
91 0000 Xxxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 Retail
95 00000 Xxxxxxx 00 Xxxxxx Xxxx XX 00000 Retail
99 0000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 Multifamily
101 000 X 00xx Xxx Xxxxxx XX 00000 Industrial
112 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Multifamily
114 000-000 Xxxx Xxxxxxx Xxxx. Xxxxx Xxxxx XX 00000 Retail
Totals and Weighted Averages:
Mortgage Percent
Loan No. Property Sub-Type Units/SF Year Built Year Renovated Leased(5)
-------- ------------------------------ -------- ---------- -------------- ----------------------------------------------
3 Urban 514,956 1971 2006 95.7%
14 Anchored 35,059 1974 1996 98.6%
14 Urban 66,600 1946 1984 56.0%
14 Multifamily/Retail 16,600 1927 2001 100.0%
14 Unanchored 12,000 1960 2001 83.3%
14 Unanchored 13,500 1958 NAP 100.0%
14 Unanchored 9,000 1961 1996 100.0%
14 Multifamily/Retail 5,000 1972 1996 50% (Commercial) and 100% (Residential)
15 Anchored 132,289 1974 2001 96.9%
16 Shadow Anchored 119,898 1988 1998 94.9%
17 Anchored 87,625 1990 2005 95.0%
19 Free Standing 110,000 2007 NAP 100.0%
24 Anchored 67,622 1990 NAP 100.0%
25 Anchored 65,572 1989 NAP 98.2%
26 Anchored 82,453 1959 1995 89.2%
28 Student Housing 168 2000 2006 96.2%
00 Xxx Xxxx 45 1930 2005 91.1%
00 Xxx Xxxx 47 1923 1985 97.9%
00 Xxx Xxxx 20 1928 2005 90.0%
00 Xxx Xxxx 30 1926 NAP 96.7%
00 Xxx Xxxx 20 1924 NAP 90.0%
00 Xxx Xxxx 20 1928 2005 100.0%
00 Xxx Xxxx 16 1925 NAP 100.0%
33 Warehouse 952,663 1998 2005 100.0%
34 Limited Service 75 1986 2001 64.8%
36 Full Service 165 1918 2000 74.4%
38 Retail/Office 51,186 1919 2004 87.5%
43 Flex 254,750 1981 2006 91.3%
00 Xxx Xxxx 42 1988 2005 97.6%
00 Xxx Xxxx 17 1988 NAP 94.1%
49 Unanchored 30,331 1977 2005 91.2%
54 Flex 53,120 1974 2006 100.0%
59 Limited Service 68 1993 2006 84.8%
60 Anchored 71,460 1988 2004 93.6%
61 Limited Service 43 1972 2005 86.9%
62 Suburban 41,849 1998 NAP 100.0%
67 Free Standing 101,630 2007 NAP 100.0%
68 Suburban 41,021 2005 NAP 100.0%
69 Limited Service 99 2005 NAP 57.1%
73 Unanchored 15,697 1985 2007 97.1%
74 Manufactured Housing Community 125 1995 NAP 92.0%
77 Anchored 31,987 2002 NAP 100.0%
79 Free Standing 140,938 2006 NAP 100.0%
84 Retail/Office 29,150 1978 2006 83.7%
91 Shadow Anchored 37,167 1979 1986 100.0%
95 Unanchored 25,562 1976 2004 100.0%
00 Xxx Xxxx 60 1928 2006 98.3%
101 Warehouse 10,570 2006 NAP 100.0%
112 Student Housing 26 1987 2000 100.0%
114 Unanchored 29,181 1990 1999 69.8%
Totals and Weighted Averages:
Mortgage Percent Leased Related Cut-Off Date Balance First Payment
Loan No. as of Date(5) Security Type(6) Lien Position Borrower List per Unit or SF Note Date Date (P&I)(7)
-------- -------------- ---------------- ------------- ------------- -------------------- ---------- -------------
3 02/01/2007 Fee / Leasehold First $184 03/07/2007 05/05/2009
14 10/31/2006 Fee First $136 01/23/2007 03/05/2012
14 10/31/2006 Fee First $136 01/23/2007 03/05/2012
14 10/31/2006 Fee First $136 01/23/2007 03/05/2012
14 10/31/2006 Fee First $136 01/23/2007 03/05/2012
14 12/07/2006 Fee First $136 01/23/2007 03/05/2012
14 10/31/2006 Fee First $136 01/23/2007 03/05/2012
14 10/31/2006 Fee First $136 01/23/2007 03/05/2012
15 01/10/2007 Fee First $159 02/07/2007 04/05/2012
16 11/01/2006 Fee First $175 02/01/2007 03/05/2012
17 10/01/2006 Fee / Leasehold First $239 01/18/2007 03/07/2012
19 08/15/2006 Fee First $182 03/07/2007 05/05/2010
24 11/01/2006 Fee First 24, 25, 26 $74 02/05/2007 03/05/2010
25 11/01/2006 Fee First 24, 25, 26 $74 02/05/2007 03/05/2010
26 11/01/2006 Fee First 24, 25, 26 $74 02/05/2007 03/05/2010
28 09/13/2006 Fee First $92,262 09/15/2006 11/05/2008
29 02/01/2007 Fee First 29, 46 $72,399 03/05/2007 NAP
29 02/01/2007 Fee First 29, 46 $72,399 03/05/2007 NAP
29 02/01/2007 Fee First 29, 46 $72,399 03/05/2007 NAP
29 02/01/2007 Fee First 29, 46 $72,399 03/05/2007 NAP
29 02/01/2007 Fee First 29, 46 $72,399 03/05/2007 NAP
29 02/01/2007 Fee First 29, 46 $72,399 03/05/2007 NAP
29 02/01/2007 Fee First 29, 46 $72,399 03/05/2007 NAP
33 12/01/2006 Fee First $13 03/07/2007 05/01/2007
34 12/31/2006 Fee First 34, 59, 61 $158,667 03/07/2007 NAP
36 12/31/2006 Fee / Leasehold First $65,455 02/15/2007 04/05/2007
38 12/06/2006 Fee First $195 02/15/2007 04/10/2007
43 11/15/2006 Fee First $35 02/01/2007 03/05/2007
46 02/01/2007 Fee First 29, 46 $146,441 03/05/2007 NAP
46 02/01/2007 Fee First 29, 46 $146,441 03/05/2007 NAP
49 12/01/2006 Fee First $272 02/22/2007 04/05/2010
54 01/19/2007 Fee First 54, 74 $141 01/26/2007 03/05/2012
59 12/31/2006 Fee First 34, 59, 61 $104,412 03/07/2007 NAP
60 11/01/2006 Fee First $99 02/01/2007 NAP
61 12/31/2006 Fee First 34, 59, 61 $151,163 03/07/2007 NAP
62 10/31/2006 Fee First $155 02/01/2007 NAP
67 01/15/2007 Fee First $61 03/05/2007 04/05/2007
68 01/01/2007 Fee First $150 02/23/2007 04/05/2009
69 12/31/2006 Fee First $60,606 02/27/2007 04/05/2007
73 01/01/2007 Fee First 73, 84 $370 02/15/2007 04/05/2012
74 03/01/2007 Fee First 54, 74 $45,600 01/26/2007 03/05/2012
77 01/18/2007 Fee First $167 03/01/2007 04/05/2012
79 11/01/2006 Leasehold First $35 03/09/2007 05/07/2011
84 01/01/2007 Fee First 73, 84 $158 02/21/2007 04/05/2012
91 08/04/2006 Fee First $110 02/16/2007 NAP
95 02/07/2007 Fee First $149 02/28/2007 04/05/2012
99 12/20/2006 Fee First $60,500 01/19/2007 NAP
101 01/01/2007 Fee First $331 03/07/2007 05/05/2007
112 12/01/2006 Fee First $118,018 12/29/2006 02/05/2007
114 12/01/2006 Fee First $103 02/20/2007 NAP
Totals and Weighted Averages:
Mortgage First Payment
Loan No. Date (IO)(7) Maturity Date Due Date Grace Period(8) ARD Loan Lockbox Status Lockbox Type
-------- ------------- ------------- -------- --------------- -------- -------------- --------------------
3 05/05/2007 04/05/2017 5 5 No In-Place Hard
14 03/05/2007 02/05/2017 5 0 No Springing Hard
14 03/05/2007 02/05/2017 5 0 No Springing Hard
14 03/05/2007 02/05/2017 5 0 No Springing Hard
14 03/05/2007 02/05/2017 5 0 No Springing Hard
14 03/05/2007 02/05/2017 5 0 No Springing Hard
14 03/05/2007 02/05/2017 5 0 No Springing Hard
14 03/05/2007 02/05/2017 5 0 No Springing Hard
15 04/05/2007 03/05/2017 5 0 No Springing Hard
16 03/05/2007 02/05/2017 5 0 No NAP NAP
17 03/07/2007 02/07/2017 7 0 No Springing Hard
19 05/05/2007 04/05/2017 5 0 No In-Place Hard
24 03/05/2007 02/05/2017 5 0 No Springing Hard
25 03/05/2007 02/05/2017 5 0 No Springing Hard
26 03/05/2007 02/05/2017 5 0 No Springing Hard
28 11/05/2006 10/05/2016 5 0 No In-Place Hard
29 04/05/2007 03/05/2014 5 0 No Springing Hard
29 04/05/2007 03/05/2014 5 0 No Springing Hard
29 04/05/2007 03/05/2014 5 0 No Springing Hard
29 04/05/2007 03/05/2014 5 0 No Springing Hard
29 04/05/2007 03/05/2014 5 0 No Springing Hard
29 04/05/2007 03/05/2014 5 0 No Springing Hard
29 04/05/2007 03/05/2014 5 0 No Springing Hard
33 NAP 04/01/2017 1 4 No Springing Hard
34 05/05/2007 04/05/2017 5 0 No Springing Hard
36 NAP 03/05/2017 5 0 No Springing Hard
38 NAP 03/10/2012 10 0 No Springing Hard
43 NAP 02/05/2017 5 0 No Springing Hard
46 04/05/2007 03/05/2014 5 0 No Springing Hard
46 04/05/2007 03/05/2014 5 0 No Springing Hard
49 04/05/2007 03/05/2017 5 0 No Springing Hard
54 03/05/2007 02/05/2017 5 0 No Springing Hard
59 05/05/2007 04/05/2017 5 0 No Springing Hard
60 03/07/2007 02/07/2017 7 0 No Springing Hard
61 05/05/2007 04/05/2017 5 0 No Springing Hard
62 03/07/2007 02/07/2017 7 0 No Springing Hard
67 NAP 03/05/2017 5 15 No In-Place Hard
68 04/05/2007 03/05/2017 5 0 No Springing Hard
69 NAP 03/05/2017 5 0 No Springing Hard
73 04/05/2007 03/05/2017 5 0 No Springing Hard
74 03/05/2007 02/05/2017 5 0 No Springing Hard
77 04/05/2007 03/05/2017 5 0 No Springing Hard
79 05/07/2007 04/07/2017 7 0 No Springing Hard
84 04/05/2007 03/05/2017 5 0 No Springing Hard
91 04/05/2007 03/05/2017 5 0 No Springing Hard
95 04/05/2007 03/05/2017 5 0 No Springing Hard
99 03/09/2007 02/09/2012 9 0 No Springing Hard
101 NAP 04/05/2017 5 0 No Springing Hard
112 NAP 01/05/2017 5 0 No In-Place Hard
114 04/07/2007 03/07/2017 7 0 No Springing Hard
Totals and Weighted Averages:
Mortgage Original Remaining Term Original Remaining Monthly
Loan No. Term to Maturity to Maturity Amort. Term(9) Amort. Term Mortgage Rate Monthly Payment (P&I) Payment (IO)
-------- ---------------- -------------- -------------- ----------- ------------- --------------------- ------------
3 120 120 360 360 6.480% $599,216 $521,550
14 120 119 360 360 5.810% $45,090 $37,786
14 120 119 360 360 5.810% $33,359 $27,955
14 120 119 360 360 5.810% $15,763 $13,210
14 120 119 360 360 5.810% $14,297 $11,981
14 120 119 360 360 5.810% $6,965 $5,837
14 120 119 360 360 5.810% $6,049 $5,069
14 120 119 360 360 5.810% $4,766 $3,994
15 120 120 360 360 5.895% $124,491 $104,882
16 120 119 360 360 5.529% $119,618 $98,370
17 120 119 360 360 5.605% $120,048 $99,247
19 120 120 360 360 5.740% $116,588 $97,261
24 120 119 360 360 5.681% $35,621 $29,600
25 120 119 360 360 5.681% $28,670 $23,825
26 120 119 360 360 5.681% $28,381 $23,584
28 120 115 360 360 5.760% $90,552 $75,640
29 84 84 IO IO 5.750% NAP $20,252
29 84 84 IO IO 5.750% NAP $16,411
29 84 84 IO IO 5.750% NAP $9,707
29 84 84 IO IO 5.750% NAP $7,821
29 84 84 IO IO 5.750% NAP $5,866
29 84 84 IO IO 5.750% NAP $5,238
29 84 84 IO IO 5.750% NAP $4,539
33 120 120 360 360 6.095% $72,681 NAP
34 120 120 IO IO 5.795% NAP $58,425
36 120 120 360 360 5.730% $62,889 NAP
38 60 60 300 300 6.590% $68,084 NAP
43 120 119 360 359 6.035% $54,162 NAP
46 84 84 IO IO 5.750% NAP $25,254
46 84 84 IO IO 5.750% NAP $16,836
49 120 120 360 360 5.870% $48,776 $41,029
54 120 119 360 360 5.557% $42,853 $35,310
59 120 120 IO IO 5.795% NAP $34,859
60 120 119 IO IO 5.650% NAP $33,986
61 120 120 IO IO 5.795% NAP $31,913
62 120 119 IO IO 5.510% NAP $30,343
67 120 120 360 360 5.505% $35,222 NAP
68 120 120 360 360 5.730% $35,927 $29,951
69 120 120 240 240 5.940% $42,778 NAP
73 120 120 360 360 5.840% $34,180 $28,697
74 120 119 360 360 5.527% $32,461 $26,691
77 120 120 360 360 5.760% $31,255 $26,108
79 120 120 300 300 5.625% $31,079 $23,828
84 120 120 360 360 5.670% $26,611 $22,097
91 120 120 IO IO 5.945% NAP $20,651
95 120 120 360 360 5.879% $22,488 $18,927
99 60 59 IO IO 5.780% NAP $17,776
101 120 120 300 300 5.800% $22,125 NAP
112 120 118 360 358 6.095% $18,624 NAP
114 120 120 IO IO 5.670% NAP $14,411
Totals and Weighted
Averages: 111 111 351 351 5.793%
Totals and Weighted
Average:
Mortgage Third Most Third Most Recent Second Most Second Most Recent
Loan No. Recent NOI(10) NOI End Date Recent NOI NOI End Date Most Recent NOI Most Recent NOI End Date
-------- -------------- ----------------- ----------- ------------------ --------------- ------------------------
3 $3,680,247 12/31/2004 $3,563,089 12/31/2005 $4,822,622 12/31/2006
14 $577,009 12/31/2004 $590,620 12/31/2005 $712,881 12/16/2006
14 $592,503 12/31/2004 $472,817 12/31/2005 $605,780 12/18/2006
14 $119,694 12/31/2004 $55,752 12/31/2005 $51,667 12/16/2006
14 $185,132 12/31/2004 $219,494 12/31/2005 $249,638 12/16/2006
14 $89,902 12/31/2004 $74,506 12/31/2005 $154,390 12/16/2006
14 $87,424 12/31/2004 $126,173 12/31/2005 $105,210 12/18/2006
14 $34,361 12/31/2004 $45,968 12/31/2005 $50,512 12/16/2006
15 $1,887,671 12/31/2004 $1,827,512 12/31/2005 $1,790,860 12/31/2006
16 $1,852,785 12/31/2004 $1,670,206 12/31/2005 $1,887,314 11/30/2006
17 $1,150,322 12/31/2004 $1,478,945 12/31/2005 $1,392,460 09/30/2006
19 NAP NAP NAP NAP NAP NAP
24 NAP NAP NAP NAP NAP NAP
25 NAP NAP NAP NAP NAP NAP
26 NAP NAP NAP NAP NAP NAP
28 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP $233,070 02/13/2007
29 NAP NAP NAP NAP $163,008 02/13/2007
29 NAP NAP NAP NAP $125,696 02/13/2007
29 NAP NAP NAP NAP $70,680 02/13/2007
29 NAP NAP NAP NAP $58,771 02/13/2007
29 NAP NAP NAP NAP $52,704 02/13/2007
29 NAP NAP NAP NAP $50,264 02/12/2007
33 NAP NAP $486,607 12/31/2004 $501,084 12/31/2005
34 $1,518,021 12/31/2004 $1,614,578 12/31/2005 $1,860,261 12/31/2006
36 $1,003,829 12/31/2004 $1,085,254 12/31/2005 $1,531,987 12/31/2006
38 $874,230 12/31/2004 $1,009,370 12/31/2005 $1,115,005 10/31/2006
43 $532,659 12/31/2004 $556,668 12/31/2005 $627,894 10/31/2006
46 NAP NAP NAP NAP $323,590 02/12/2007
46 NAP NAP NAP NAP $210,251 02/12/2007
49 $201,190 12/31/2004 $420,751 12/31/2005 $709,245 12/31/2006
54 NAP NAP NAP NAP NAP NAP
59 $744,062 12/31/2004 $937,479 12/31/2005 $1,143,160 12/31/2006
60 $610,235 12/31/2004 $714,223 12/31/2005 $663,377 10/31/2006
61 $739,796 12/31/2004 $918,172 12/31/2005 $1,041,024 12/31/2006
62 NAP NAP $630,415 12/31/2005 $733,620 10/31/2006
67 NAP NAP NAP NAP NAP NAP
68 NAP NAP NAP NAP $641,510 12/31/2006
69 NAP NAP NAP NAP $878,535 12/31/2006
73 $624,358 12/31/2004 $589,741 12/31/2005 $546,714 12/31/2006
74 $338,285 12/31/2004 $340,106 12/31/2005 $401,168 12/31/2006
77 NAP NAP NAP NAP $501,131 12/31/2005
79 NAP NAP NAP NAP NAP NAP
84 $204,023 12/31/2004 $350,606 12/31/2005 $370,872 12/31/2006
91 NAP NAP $185,629 12/31/2004 $256,979 12/31/2005
95 $314,376 12/31/2004 $336,950 12/31/2005 $347,919 12/31/2006
99 NAP NAP NAP NAP NAP NAP
101 NAP NAP NAP NAP NAP NAP
112 $256,156 08/31/2004 $272,185 08/31/2005 $291,999 08/31/2006
114 $294,345 12/31/2004 $307,537 12/31/2005 $357,159 10/31/2006
Mortgage
Loan No. Underwritten EGI Underwritten Expenses Underwritable NOI Underwritten Reserves Underwritable Cash Flow
-------- ---------------- --------------------- ----------------- --------------------- -----------------------
3 $18,255,294 $9,101,789 $9,153,505 $773,676 $8,379,829
14 $1,197,151 $415,633 $781,518 $37,094 $744,424
14 $853,367 $335,282 $518,085 $39,687 $478,398
14 $377,317 $204,774 $172,543 $18,140 $154,403
14 $308,363 $69,045 $239,318 $11,055 $228,263
14 $200,886 $68,454 $132,432 $12,407 $120,025
14 $165,161 $52,485 $112,676 $6,576 $106,100
14 $106,835 $42,539 $64,296 $3,204 $61,092
15 $2,526,837 $596,875 $1,929,962 $101,658 $1,828,304
16 $2,457,875 $670,381 $1,787,494 $48,700 $1,738,794
17 $2,333,078 $557,313 $1,775,765 $88,765 $1,687,000
19 $1,550,000 $15,500 $1,534,500 $0 $1,534,500
24 $740,335 $127,974 $612,361 $42,117 $570,244
25 $621,629 $160,736 $460,893 $45,563 $415,330
26 $687,304 $213,278 $474,026 $35,678 $438,348
28 $2,587,913 $1,129,053 $1,458,860 $42,000 $1,416,860
29 $578,121 $216,815 $361,306 $11,250 $350,056
29 $490,278 $194,378 $295,900 $12,000 $283,900
29 $271,974 $85,815 $186,159 $5,000 $181,159
29 $262,606 $113,272 $149,334 $7,500 $141,834
29 $196,150 $78,850 $117,300 $5,000 $112,300
29 $177,285 $79,694 $97,591 $5,000 $92,591
29 $157,444 $62,413 $95,031 $4,000 $91,031
33 $1,433,052 $172,121 $1,260,931 $14,342 $1,246,589
34 $3,340,399 $1,707,722 $1,632,677 $133,616 $1,499,061
36 $6,440,847 $5,112,774 $1,328,073 $257,634 $1,070,439
38 $1,315,137 $227,934 $1,087,203 $66,189 $1,021,014
43 $1,272,917 $448,948 $823,969 $73,964 $750,005
46 $735,803 $228,005 $507,798 $10,500 $497,298
46 $433,952 $126,484 $307,468 $4,250 $303,218
49 $1,102,957 $326,229 $776,728 $35,007 $741,721
54 $867,842 $217,518 $650,324 $34,905 $615,419
59 $2,778,961 $1,683,063 $1,095,898 $111,158 $984,740
60 $870,942 $232,333 $638,609 $50,135 $588,474
61 $1,994,684 $1,102,157 $892,527 $79,787 $812,740
62 $876,648 $242,684 $633,964 $60,979 $572,985
67 $465,000 $0 $465,000 $0 $465,000
68 $798,647 $220,357 $578,290 $48,827 $529,463
69 $1,831,983 $1,090,013 $741,970 $73,279 $668,691
73 $652,073 $129,541 $522,532 $22,870 $499,662
74 $658,179 $171,543 $486,636 $6,250 $480,386
77 $641,017 $176,029 $464,988 $26,309 $438,679
79 $1,757,250 $821,304 $935,946 $0 $935,946
84 $589,900 $224,829 $365,071 $23,104 $341,967
91 $545,770 $172,580 $373,190 $30,062 $343,128
95 $549,056 $200,981 $348,075 $20,060 $328,015
99 $544,124 $264,153 $279,971 $15,000 $264,971
101 $632,218 $48,699 $583,519 $6,390 $577,129
112 $345,434 $73,421 $272,013 $6,500 $265,513
114 $508,137 $144,359 $363,778 $22,338 $341,440
Totals and Weighted Averages:
Cooperative Loans
------------------------------------------
Mortgage Unsold
Loan No. Balloon Balance Current Value(11) Source of Value Valuation Date Rental Value(12) LTV as Rental Percent
-------- --------------- ----------------- --------------- -------------- ---------------- ------------- -------
3 $85,092,056 $124,500,000 Appraisal 01/26/2007 NAP NAP NAP
14 $7,163,156 $12,300,000 Appraisal 12/07/2006 NAP NAP NAP
14 $5,299,571 $9,100,000 Appraisal 12/05/2006 NAP NAP NAP
14 $2,504,193 $4,300,000 Appraisal 12/05/2006 NAP NAP NAP
14 $2,271,245 $3,900,000 Appraisal 12/05/2006 NAP NAP NAP
14 $1,106,504 $1,900,000 Appraisal 12/07/2006 NAP NAP NAP
14 $960,911 $1,650,000 Appraisal 12/07/2006 NAP NAP NAP
14 $757,082 $1,300,000 Appraisal 12/05/2006 NAP NAP NAP
15 $19,617,588 $35,000,000 Appraisal 12/29/2006 NAP NAP NAP
16 $19,519,584 $30,000,000 Appraisal 12/15/2006 NAP NAP NAP
17 $19,447,465 $29,900,000 Appraisal 10/24/2006 NAP NAP NAP
19 $17,982,610 $25,000,000 Appraisal 11/24/2006 NAP NAP NAP
24 $5,522,004 $7,900,000 Appraisal 12/14/2006 NAP NAP NAP
25 $4,444,540 $6,375,000 Appraisal 11/22/2006 NAP NAP NAP
26 $4,399,646 $6,774,000 Appraisal 12/01/2006 NAP NAP NAP
28 $13,660,860 $20,700,000 Appraisal 08/21/2006 NAP NAP NAP
29 $4,157,150 $4,700,000 Appraisal 01/22/2007 NAP NAP NAP
29 $3,368,725 $3,700,000 Appraisal 01/23/2007 NAP NAP NAP
29 $1,992,565 $2,400,000 Appraisal 01/23/2007 NAP NAP NAP
29 $1,605,520 $1,900,000 Appraisal 01/22/2007 NAP NAP NAP
29 $1,204,140 $1,400,000 Appraisal 01/22/2007 NAP NAP NAP
29 $1,075,125 $1,200,000 Appraisal 01/22/2007 NAP NAP NAP
29 $931,775 $1,200,000 Appraisal 01/22/2007 NAP NAP NAP
33 $10,207,759 $21,800,000 Appraisal 01/11/2007 NAP NAP NAP
34 $11,900,000 $21,100,000 Appraisal 01/29/2007 NAP NAP NAP
36 $9,088,555 $15,800,000 Appraisal 01/04/2007 NAP NAP NAP
38 $9,124,122 $15,100,000 Appraisal 11/12/2006 NAP NAP NAP
43 $7,639,547 $12,100,000 Appraisal 11/28/2006 NAP NAP NAP
46 $5,184,000 $6,900,000 Appraisal 01/23/2007 NAP NAP NAP
46 $3,456,000 $4,900,000 Appraisal 01/23/2007 NAP NAP NAP
49 $7,437,493 $12,800,000 Appraisal 12/08/2006 NAP NAP NAP
54 $6,974,042 $12,010,000 Appraisal 01/09/2007 NAP NAP NAP
59 $7,100,000 $11,000,000 Appraisal 01/29/2007 NAP NAP NAP
60 $7,100,000 $10,800,000 Appraisal 12/20/2006 NAP NAP NAP
61 $6,500,000 $10,900,000 Appraisal 01/29/2007 NAP NAP NAP
62 $6,500,000 $10,600,000 Appraisal 12/05/2006 NAP NAP NAP
67 $5,181,543 $8,075,000 Appraisal 10/28/2007 NAP NAP NAP
68 $5,434,881 $8,800,000 Appraisal 01/17/2007 NAP NAP NAP
69 $3,926,507 $9,400,000 Appraisal 01/12/2007 NAP NAP NAP
73 $5,414,147 $7,900,000 Appraisal 01/17/2007 NAP NAP NAP
74 $5,298,023 $8,220,000 Appraisal 01/03/2007 NAP NAP NAP
77 $4,988,616 $8,140,000 Appraisal 01/18/2007 NAP NAP NAP
79 $4,375,645 $8,840,000 Appraisal 01/05/2007 NAP NAP NAP
84 $4,283,937 $6,360,000 Appraisal 01/22/2007 NAP NAP NAP
91 $4,100,000 $7,400,000 Appraisal 12/15/2006 NAP NAP NAP
95 $3,549,080 $5,150,000 Appraisal 02/01/2007 NAP NAP NAP
99 $3,630,000 $4,600,000 Appraisal 12/13/2006 NAP NAP NAP
101 $2,692,669 $7,200,000 Appraisal 02/26/2007 NAP NAP NAP
112 $2,615,049 $4,100,000 Appraisal 12/05/2006 NAP NAP NAP
114 $3,000,000 $6,900,000 Appraisal 11/30/2006 NAP NAP NAP
Totals and Weighted Averages:
Cooperative Loans
------------------------------------------------------------
Mortgage Sponsor/
Loan No. Sponsor Units Investor Units Coop Units Investor Carry Largest Tenant(13) Lease Expiration Date
-------- ------------- -------------- ---------- -------------- ------------------------------- ---------------------
3 NAP NAP NAP NAP Xxxxxxx, Del Deo, Xxxxx 06/30/2018
14 NAP NAP NAP NAP Walgreens 03/30/2015
14 NAP NAP NAP NAP National MS Society 07/31/2009
14 NAP NAP NAP NAP Broadway Bank 11/30/2026
14 NAP NAP NAP NAP Butter 06/30/2011
14 NAP NAP NAP NAP Furniture Inn, LTD 08/31/2009
14 NAP NAP NAP NAP Covenient 05/31/2009
14 NAP NAP NAP NAP Broadway Bank 11/30/2026
15 NAP NAP NAP NAP Safeway Store 01/31/2022
16 NAP NAP NAP NAP Xxxxx College 03/31/2012
17 NAP NAP NAP NAP Tesco Stores West Inc 05/30/2027
19 NAP NAP NAP NAP Giant Foods 08/31/2032
24 NAP NAP NAP NAP Xxxx-Xxxxx Xxxxxxxxxx, Inc. 05/05/2011
25 NAP NAP NAP NAP Fred's Stores 03/31/2013
26 NAP NAP NAP NAP Food Lion 02/28/2017
28 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP NAP
33 NAP NAP NAP NAP Pan Western Corporation 01/31/2022
34 NAP NAP NAP NAP NAP NAP
36 NAP NAP NAP NAP NAP NAP
38 NAP NAP NAP NAP Jung Xxx Xxxx 02/28/2009
43 NAP NAP NAP NAP ETS 03/31/2011
46 NAP NAP NAP NAP NAP NAP
46 NAP NAP NAP NAP NAP NAP
49 NAP NAP NAP NAP Xxxx Xxxxx Lu Restaurant 07/31/2011
54 NAP NAP NAP NAP Team OC Fun 10/31/2021
59 NAP NAP NAP NAP NAP NAP
60 NAP NAP NAP NAP Farm Fresh 12/31/2016
61 NAP NAP NAP NAP NAP NAP
62 NAP NAP NAP NAP Southern Nevada Health District 01/31/2008
67 NAP NAP NAP NAP Kohl's Department Stores, Inc. 01/14/2032
68 NAP NAP NAP NAP Healthfield Hospice 08/30/2010
69 NAP NAP NAP NAP NAP NAP
73 NAP NAP NAP NAP Coyote Cafe' 07/31/2016
74 NAP NAP NAP NAP NAP NAP
77 NAP NAP NAP NAP Xxxx Dress for Less 01/31/2013
79 NAP NAP NAP NAP Lowe's Sandwich Lease 05/31/2031
84 NAP NAP NAP NAP Burger King 09/25/2014
91 NAP NAP NAP NAP Aaron's 04/14/2010
95 NAP NAP NAP NAP SSI Venture 10/31/2010
99 NAP NAP NAP NAP NAP NAP
101 NAP NAP NAP NAP Insurance Auto Auctions 12/15/2026
112 NAP NAP NAP NAP NAP NAP
114 NAP NAP NAP NAP DMV 02/28/2010
Totals and Weighted Averages:
Mortgage Lease
Loan No. % NSF Second Largest Tenant Expiration Date % NSF Third Largest Tenant
-------- ----- ------------------------------ --------------- ----- ---------------------------
3 20.2% Saiber, Schlesinger, Xxxxx 11/14/2009 8.4% Xxxxxx
14 33.7% Blockbuster 08/30/2007 17.1% Beauty Salon
14 30.0% Family Health Network, Inc. 02/28/2010 14.3% Beverage Testing Institute
14 75.9% United Investors 11/30/2026 24.1% NAP
14 50.0% Xxxxx Dental Center 08/31/2010 16.7% Cleaners
14 29.6% Cresent C. Ligo 08/31/2007 18.5% Cleaners
14 38.9% Laundry 01/31/2009 22.2% Xxxxxxx & Xxxxxx Xxxxxxx
14 50.0% NAP NAP NAP NAP
15 42.5% Rite Aid 04/30/2010 6.9% Fashion Bug
16 27.9% El Torito 10/31/2008 9.5% Black Angus
17 19.1% Petco Animal Supplies 01/31/2012 15.9% Sizzler
19 100.0% NAP NAP NAP NAP
24 53.1% Rite-Aid (fka Harco Drugs) 04/14/2011 13.5% M.G.A, Inc. (Movie Gallery)
25 30.3% Aldi 08/31/2016 24.5% Dollar Tree
26 35.2% Dollar General 08/31/2011 12.5% Piedmont Decorators
28 NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP
29 NAP NAP NAP NAP NAP
33 100.0% NAP NAP NAP NAP
34 NAP NAP NAP NAP NAP
36 NAP NAP NAP NAP NAP
38 12.5% Xxxxx Xxx-Xxxxxxx 07/31/2007 6.6% Cielo, Inc.
43 11.8% Statcorp-Newalliance 03/31/2009 6.9% Alps Wire Rope Corporation
46 NAP NAP NAP NAP NAP
46 NAP NAP NAP NAP NAP
49 11.6% San Chun Restaurant 01/31/2007 11.5% Hamsoa NJ Inc.
54 80.7% Cal-Am Properties Incorporated 10/31/2021 19.4% NAP
59 NAP NAP NAP NAP NAP
60 60.7% Imperial Palace 08/30/2009 4.7% Dragon Connection
61 NAP NAP NAP NAP NAP
62 48.2% Nevada Health Centers 06/30/2012 14.6% Xxxxx X. Xxxxx, M.D.
67 100.0% NAP NAP NAP NAP
68 23.7% South Atlanta Hemotology 04/30/2015 18.3% Xx. Xxxxx Xxx
69 NAP NAP NAP NAP NAP
73 61.3% Cos Bar of Santa Fe 10/31/2011 10.5% Desert Sage
74 NAP NAP NAP NAP NAP
77 90.8% Payless Shoesource 04/30/2012 8.8% The Golden 1 Credit Union
79 100.0% NAP NAP NAP NAP
84 13.0% North Shore Cleaners 08/31/2007 6.5% Chicago Title
91 16.7% Brothers Beauty Supply 07/29/2008 13.9% Lola's Buffet
95 38.0% On The Rocks, Inc. 10/31/2009 10.7% Alpine Peaks, Inc.
99 NAP NAP NAP NAP NAP
101 100.0% NAP NAP NAP NAP
112 NAP NAP NAP NAP NAP
114 15.3% Health Car Facility 03/31/2015 10.9% Radio Shack
Totals and Weighted Averages:
Mortgage Lease Insurance Tax Escrow Capital Expenditure TI/LC Escrow Other Escrow
Loan No. Expiration Date % NSF Escrow in Place in Place(14) Escrow in Place(15) in Place(16) Description(17)
-------- ---------------- ----- --------------- ------------ ------------------- ------------ -----------------------
3 07/31/2016 5.4% Yes Yes Yes Yes Xxxxxxx Outstanding
Tenant Improvement
Reserve
($1,429,418.59)
and Free Rent Reserve
($240,213.90)
14 05/31/2009 7.1% Yes Yes Yes Yes NAP
14 07/31/2009 9.0% Yes Yes Yes Yes NAP
14 NAP NAP Yes Yes Yes Yes NAP
14 08/31/2007 8.3% Yes Yes Yes Yes NAP
14 02/28/2011 14.8% Yes Yes Yes Yes NAP
14 06/30/2007 22.2% Yes Yes Yes Yes NAP
14 NAP NAP Yes Yes Yes Yes NAP
15 08/31/2011 6.3% Yes Yes Yes Yes NAP
16 10/31/2009 8.5% Yes Yes Yes Yes NAP
17 06/30/2023 7.9% Yes Yes Yes Yes Upfront TI/LC
Obligations
for Golden Optometric
($90,000),
Panera ($107,500),
Pondahan ($10,000) and
Ground Lease Escrow
($15,600)
19 NAP NAP Yes Yes No No Debt Service Reserve
24 04/30/2007 6.7% Yes Yes Yes Yes Xxxx Xxxxx Reserve and
Anchor Tenant Reserve
25 10/31/2007 14.6% Yes Yes Yes Yes Anchor Tenant Reserve
26 11/30/2007 10.7% Yes Yes Yes Yes Food Lion Reserve and
Anchor Tenant Reserve
28 NAP NAP Yes Yes Yes No NAP
29 NAP NAP Yes Yes Yes No Waterfall Payments
Shortfall Reserve
29 NAP NAP Yes Yes Yes No Waterfall Payments
Shortfall Reserve
29 NAP NAP Yes Yes Yes No Waterfall Payments
Shortfall Reserve
29 NAP NAP Yes Yes Yes No Waterfall Payments
Shortfall Reserve
29 NAP NAP Yes Yes Yes No Waterfall Payments
Shortfall Reserve
29 NAP NAP Yes Yes Yes No Waterfall Payments
Shortfall Reserve
29 NAP NAP Yes Yes Yes No Waterfall Payments
Shortfall Reserve
33 NAP NAP Yes Yes Yes No NAP
34 NAP NAP Yes Yes Yes No NAP
36 NAP NAP Yes Yes Yes No NAP
38 04/30/2008 5.2% Yes Yes Yes Yes NAP
43 05/31/2010 5.9% Yes Yes Yes No Windstorm Insurance
Deductible Reserve
46 NAP NAP Yes Yes Yes No NAP
46 NAP NAP Yes Yes Yes No NAP
49 11/30/2010 8.2% Yes Yes Yes Yes NAP
54 NAP NAP Yes Yes Yes No NAP
59 NAP NAP Yes Yes Yes No PIP Reserve
60 09/30/2008 3.9% Yes Yes Yes Yes NAP
61 NAP NAP Yes Yes Yes No NAP
62 11/30/2007 8.8% Yes Yes Yes Yes NAP
67 NAP NAP No No No No NAP
68 04/30/2015 15.4% Yes Yes Yes Yes NAP
69 NAP NAP Yes Yes Yes No NAP
73 02/28/2012 10.4% Yes Yes Yes Yes NAP
74 NAP NAP Yes Yes Yes No NAP
77 01/31/2012 0.3% Yes Yes Yes Yes NAP
79 NAP NAP Yes No No No Ground Lease Escrow
84 02/28/2008 6.5% Yes Yes Yes Yes NAP
91 07/20/2016 11.3% Yes Yes No No NAP
95 06/30/2010 10.7% Yes Yes Yes Yes NAP
99 NAP NAP Yes Yes Yes No NAP
101 NAP NAP No No No No NAP
112 NAP NAP Yes Yes Yes No Debt Service Reserve
114 01/31/2012 9.6% Yes Yes Yes Yes NAP
Totals and Weighted Averages:
Initial Capital Monthly Capital Current Capital
Mortgage Expenditure Expenditure Expenditure
Loan No. Springing Escrow Description(18) Escrow Requirement(19) Escrow Requirement(20) Escrow Balance (21)
-------- -------------------------------- ---------------------- ---------------------- -------------------
3 NAP $0 $8,577 $0
14 NAP $0 $1,002 $1,002
14 NAP $0 $741 $741
14 NAP $0 $350 $350
14 NAP $0 $318 $318
14 NAP $0 $155 $155
14 NAP $0 $134 $134
14 NAP $0 $106 $106
15 NAP $0 $1,100 $0
16 NAP $0 $2,400 $2,400
17 NAP $0 $1,096 $1,096
19 NAP $0 $0 $0
24 Other $0 $1,127 $1,127
25 Other $0 $1,311 $1,311
26 Other $0 $1,374 $1,374
28 NAP $0 $3,500 $17,500
29 NAP $865,650 $0 $865,650
29 NAP $701,475 $0 $701,475
29 NAP $414,915 $0 $414,915
29 NAP $334,320 $0 $334,320
29 NAP $250,740 $0 $250,740
29 NAP $223,875 $0 $223,875
29 NAP $194,025 $0 $194,025
33 NAP $0 $385 $0
34 NAP $0 $11,135 $0
36 NAP $0 $21,469 $0
38 NAP $0 $640 $0
43 TI/LC $0 $2,123 $2,123
46 NAP $354,000 $0 $354,000
46 NAP $236,000 $0 $236,000
49 NAP $0 $379 $0
54 NAP $0 $750 $750
59 Other $0 $9,263 $0
60 NAP $0 $900 $900
61 NAP $0 $6,649 $0
62 NAP $0 $700 $700
67 RE Tax, Insurance, Cap Ex, TI/LC $0 $0 $0
68 NAP $0 $675 $0
69 NAP $0 $6,134 $0
73 NAP $0 $196 $0
74 NAP $0 $521 $521
77 NAP $0 $400 $0
79 NAP $0 $0 $0
84 NAP $0 $364 $0
91 NAP $0 $0 $0
95 NAP $0 $320 $0
99 NAP $0 $1,250 $1,250
101 RE Tax, Insurance, Cap Ex, TI/LC $0 $0 $0
112 NAP $0 $596 $1,192
114 NAP $0 $365 $0
Totals and Weighted Averages:
Mortgage Initial TI/LC Escrow Monthly TI/LC Current TI/LC Environmental Interest
Loan No. Requirement (22) Escrow Requirement(23) Escrow Balance(24) Insurance Accrual Method Seasoning(25)
-------- -------------------- ---------------------- ------------------ ------------- -------------- -------------
3 $76,420 $61,707 $76,420 No Actual/360 0
14 $124,964 $2,975 $2,975 No Actual/360 1
14 $92,453 $2,201 $2,201 No Actual/360 1
14 $43,687 $1,040 $1,040 No Actual/360 1
14 $39,623 $943 $943 No Actual/360 1
14 $19,303 $460 $460 No Actual/360 1
14 $16,763 $399 $399 No Actual/360 1
14 $13,208 $314 $314 No Actual/360 1
15 $60,622 $6,250 $60,622 No Actual/360 0
16 $0 $12,000 $12,000 No Actual/360 1
17 $0 $5,956 $5,956 No Actual/360 1
19 $0 $0 $0 No Actual/360 0
24 $0 $4,226 $4,226 No Actual/360 1
25 $50,000 $5,464 $55,506 No Actual/360 1
26 $50,000 $5,840 $55,882 No Actual/360 1
28 $0 $0 $0 No Actual/360 5
29 $0 $0 $0 No Actual/360 0
29 $0 $0 $0 No Actual/360 0
29 $0 $0 $0 No Actual/360 0
29 $0 $0 $0 No Actual/360 0
29 $0 $0 $0 No Actual/360 0
29 $0 $0 $0 No Actual/360 0
29 $0 $0 $0 No Actual/360 0
33 $0 $0 $0 No Actual/360 0
34 $0 $0 $0 No Actual/360 0
36 $0 $0 $0 No Actual/360 0
38 $120,000 $0 $120,000 No Actual/360 0
43 $0 $0 $0 No Actual/360 1
46 $0 $0 $0 No Actual/360 0
46 $0 $0 $0 No Actual/360 0
49 $0 $2,500 $0 No Actual/360 0
54 $0 $0 $0 No Actual/360 1
59 $0 $0 $0 No Actual/360 0
60 $0 $3,500 $3,500 No Actual/360 1
61 $0 $0 $0 No Actual/360 0
62 $300,000 $0 $300,292 No Actual/360 1
67 $0 $0 $0 No Actual/360 0
68 $0 $3,500 $0 No Actual/360 0
69 $0 $0 $0 No Actual/360 0
73 $0 $2,917 $0 No Actual/360 0
74 $0 $0 $0 No Actual/360 1
77 $0 $3,704 $0 No Actual/360 0
79 $0 $0 $0 No Actual/360 0
84 $0 $2,083 $0 No Actual/360 0
91 $0 $0 $0 No Actual/360 0
95 $150,000 $1,650 $150,000 No Actual/360 0
99 $0 $0 $0 No Actual/360 1
101 $0 $0 $0 No Actual/360 0
112 $0 $0 $0 No Actual/360 2
114 $0 $2,100 $0 No Actual/360 0
Totals and Weighted Averages:
Prepayment Code(25)
---------------------------------------------------------------------
Mortgage Administrative Mortgage
Loan No. LO DEF DEF/YM1 YM3 YM1 3% 2% 1% Open YM Formula(27) Cost Rate (28) Loan No.
-------- -- --- ------- --- --- - - - ---- -------------- ------------- --------
3 24 92 4 2.085 3
14 25 92 3 2.085 14
14 25 92 3 2.085 14
14 25 92 3 2.085 14
14 25 92 3 2.085 14
14 25 92 3 2.085 14
14 25 92 3 2.085 14
14 25 92 3 2.085 14
15 24 93 3 2.085 15
16 25 92 3 2.085 16
17 25 90 5 2.085 17
19 24 93 3 2.085 19
24 25 92 3 2.085 24
25 25 92 3 2.085 25
26 25 92 3 2.085 26
28 29 88 3 2.085 28
29 24 53 7 2.085 29
29 24 53 7 2.085 29
29 24 53 7 2.085 29
29 24 53 7 2.085 29
29 24 53 7 2.085 29
29 24 53 7 2.085 29
29 24 53 7 2.085 29
33 24 93 3 6.085 33
34 116 4 F 2.085 34
36 24 93 3 2.085 36
38 36 12 8 4 G 2.085 38
43 25 92 3 8.085 43
46 24 53 7 2.085 46
46 24 53 7 2.085 46
49 24 93 3 2.085 49
54 25 91 4 2.085 54
59 116 4 F 2.085 59
60 25 92 3 2.085 60
61 116 4 F 2.085 61
62 25 92 3 2.085 62
67 24 92 4 2.085 67
68 24 93 3 2.085 68
69 24 93 3 7.085 69
73 24 93 3 2.085 73
74 25 91 4 2.085 74
77 24 93 3 2.085 77
79 24 91 5 2.085 79
84 24 93 3 2.085 84
91 24 93 3 2.085 91
95 116 4 F 2.085 95
99 24 32 4 G 2.085 99
101 11 106 3 F 2.085 101
112 26 91 3 2.085 112
114 24 93 3 2.085 114
Totals and Weighted Averages:
SCHEDULE III
NCB LOAN SCHEDULE
[see attached]
DISCLAIMER
Prospective investors are advised to read carefully, and should rely solely on,
the Prospectus Supplement dated March 22, 2007, and accompanying Prospectus
dated February 6, 2007 (together, the "Prospectus") relating to the Certificates
referred to below in making their investment decision.
This diskette accompanies and is a part of the Prospectus relating to the
Commercial Mortgage Pass-Through Certificates Series 2007-IQ13 (the
"Certificates"). The information set forth on this diskette is an electronic
copy of the information set forth in Appendix II labeled "Certain
Characteristics of the Mortgage Loans" in the Prospectus. This diskette should
be reviewed only in conjunction with the entire Prospectus. This diskette does
not contain all relevant information relating to the Certificates. Such
information is described elsewhere in the Prospectus.
Methodologies used in deriving certain information contained on this diskette
are more fully described elsewhere in the Prospectus.
The information on this diskette should not be viewed as projections, forecasts,
predictions or opinions with respect to value.
IMPORTANT NOTICE RELATING TO AUTOMATICALLY GENERATED EMAIL DISCLAIMERS Any
legends, disclaimers or other notices that may appear at the bottom of, or
attached to, the email communication to which this material may have been
attached are not applicable to these materials and should be disregarded. Such
legends, disclaimers or other notices have been automatically generated as a
result of these materials having been sent via Bloomberg or another email
system.
APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Mortgage
Loan No. CMSA Loan No. CMSA Property No. Loan Seller(1) Property Name(2) Loan Group
-------- ------------- ----------------- -------------- ---------------------------------- ----------
27 27 27-001 NCB,FSB Xxxx Xxxxxxx Xxxxx 0
00 00 00-000 XXX,XXX Penn Nursing Building 1
39 39 39-001 NCB,FSB 000-00 Xxxxxxx Xxxxxxx Owners 2
41 41 41-001 NCB,FSB Manor Towers Owners 2
47 47 47-001 NCB,FSB Laurelton Gardens Corp. 2
48 48 48-001 NCB,FSB 000/000 Xxxx 00xx Xxxxxxxxx Xxxx. 2
50 50 50-001 NCB,FSB Xxxxxxx Mutual Homes, Inc. I & II 2
53 53 53-001 NCB,FSB Inwood Owners, Inc. 2
63 63 63-001 NCB,FSB Xxxxxxxxxxxxx Xxxx Xxxxxx 0
00 00 00-000 XXX,XXX Knollwood Manor, Inc. 2
75 75 75-001 NCB,FSB Xxxxxx-Xxxxxx Owners 2
76 76 76-001 NCB,FSB High Meadow Cooperative Xx. 0 0
00 00 00-000 XXX,XXX Xxxxxxxx Xxxxx Houses 2
83 83 83-001 NCB,FSB Xxxxxxxxxxx Townhouses Cooperative 2
90 90 90-001 NCB,FSB Bay Terrace Cooperative Section X 2
96 96 96-001 NCB,FSB Xxxxxx'x Furniture-Novi 1
102 102 102-001 NCB,FSB Sherbrooke Smithtown Owners 2
109 109 109-001 NCB,FSB The Xxxxx De Xxxx Cooperative 2
111 111 111-001 NCB,FSB Xxxxxxxx Place Owners 2
113 113 113-001 NCB,FSB The Xxxxxx Residence 2
118 118 118-001 NCB,FSB Beechwood Gardens Owners 2
121 121 121-001 NCB,FSB Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0
000 000 122-001 NCB,FSB Briar Hill Owners Corp. 2
123 123 123-001 NCB,FSB Mainstay Cooperative Section One 2
124 124 124-001 NCB,FSB Xxxxxxxxx Tenants Corporation 2
125 125 125-001 NCB,FSB 000 Xxxx 00xx Xxxxxx, Inc. 2
128 128 128-001 NCB,FSB Prince Tower Tenants Corp. 2
129 129 129-001 NCB,FSB 0000 Xxxxxxxxxxxx Xxx. Owners 2
131 131 131-001 NCB,FSB Xxxxxxxx Gardens Owners 2
133 133 133-001 NCB,FSB 000 Xxxx Xxx Owners Corp. 2
135 135 135-001 NCB,FSB Xxxxxxx Xxxxxx Xxxxxxxxxx 0
000 000 136-001 NCB,FSB Victory Parkway Executive Building 1
138 138 138-001 NCB,FSB 2750 Xxxxxxx Owners 2
141 141 141-001 NCB,FSB CVS Ground Lease-Simpsonville 1
142 142 142-001 NCB,FSB Xxxxx Xxxxx Xxxxxxxxxx 0
000 000 143-001 NCB,FSB Columbia Bedford Tractor 1
144 144 144-001 NCB,FSB Greenwich 33 Apartment Corp. 2
145 145 145-001 NCB,FSB 000 Xxxx Xxx Tenants Corp. 2
148 148 148-001 NCB,FSB Wachovia Bank 1
150 150 150-001 NCB,FSB Jewelry Building 1
153 153 153-001 NCB,FSB CVS Spartanburg 1
154 154 154-001 NCB,FSB Happy Valley Apartments 2
155 155 155-001 NCB,FSB Parish Property 2
156 156 156-001 NCB,FSB 000 Xxxxxxxxx Xxxxxx Corporation 2
157 157 157-001 NCB,FSB 00-00 000xx Xxxxxx Realty Corp. 2
159 159 159-001 NCB,FSB Xxxxxx'x Furniture-Xxxx 1
160 160 160-001 NCB,FSB Jopau Realty 1
161 161 161-001 NCB,FSB Allofus Tenants Inc. 2
162 162 162-001 NCB,FSB 000 Xxxx Xxxxx Xxxxxx Apartments 1
164 164 164-001 NCB,FSB Great Falls Village Center 1
165 165 165-001 NCB,FSB Southgate Apartments. 2
166 166 166-001 NCB,FSB 0000 Xxxxxxx Xxxxxx Ltd. 2
167 167 167-001 NCB,FSB Rancho Pines Business Park 1
168 168 168-001 NCB,FSB 000-000 Xxxx Xxxxx Xxxxxx 2
169 169 169-001 NCB,FSB 3231-5-9 Xxxxxx Owners 2
170 170 170-001 NCB,FSB Gramatan Court Apartments 2
171 171 171-001 NCB,FSB Cajun Properties 2
172 172 172-001 NCB,FSB 00 Xxxx 00xx Xxxxxx Cooperative 2
173 173 173-001 NCB,FSB 00 Xxxx 00xx Xxxxxx, Inc. 2
174 174 174-001 NCB,FSB Parkview Manor-Lockland 2
Totals and Weighted Averages:
Mortgage Cross-Collater- Cut-Off Date Post IO Period Cut-Off Balloon
Loan No. alization(2) Original Balance Balance(3) NOI DSCR(4) NCF DSCR(4) NCF DSCR(4) Date LTV(4) LTV(4)
-------- --------------- ---------------- ------------ ----------- ----------- -------------- ----------- -------
27 No $15,600,000 $15,600,000 1.52 1.46 1.23 76.5% 67.8%
31 No $14,200,000 $14,200,000 1.22 1.21 1.21 79.8% 67.9%
39 No $10,000,000 $9,969,321 3.72 3.72 NAP 16.3% 14.6%
41 No $9,400,000 $9,380,324 3.56 3.56 NAP 15.8% 14.7%
47 No $8,500,000 $8,488,922 4.25 4.25 NAP 15.3% 14.1%
48 No $8,500,000 $8,464,404 4.72 4.72 NAP 10.2% 8.7%
50 No $8,006,424 $8,006,424 3.88 3.88 3.30 13.8% 11.9%
53 No $7,600,000 $7,590,406 6.47 6.47 NAP 7.8% 7.2%
63 No $6,500,000 $6,500,000 1.63 1.54 1.28 79.3% 70.0%
66 No $6,425,000 $6,411,559 2.84 2.84 NAP 28.4% 21.1%
75 No $5,600,000 $5,590,823 8.42 8.42 NAP 7.0% 6.5%
76 No $5,500,000 $5,482,040 4.46 4.46 NAP 15.9% 13.4%
81 No $5,000,000 $4,989,591 2.70 2.70 NAP 25.0% 21.4%
83 No $4,650,000 $4,636,607 4.07 4.07 NAP 13.7% 10.2%
90 No $4,200,000 $4,194,168 9.68 9.68 NAP 6.0% 5.6%
96 No $3,700,000 $3,700,000 2.82 2.73 2.29 57.8% 51.2%
102 No $3,500,000 $3,495,506 3.04 3.04 NAP 27.1% 25.0%
109 No $3,264,000 $3,236,905 4.16 4.16 NAP 9.4% 6.3%
111 No $3,200,000 $3,172,067 3.66 3.66 NAP 13.1% 0.4%
113 No $3,000,000 $3,000,000 3.75 3.75 NAP 20.6% 20.6%
118 No $2,900,000 $2,894,107 3.34 3.34 NAP 19.7% 18.3%
121 No $2,700,000 $2,693,989 1.83 1.71 NAP 59.9% 50.7%
122 No $2,600,000 $2,595,010 4.63 4.63 NAP 12.4% 11.6%
123 No $2,500,000 $2,496,923 6.67 6.67 NAP 11.4% 10.6%
124 No $2,500,000 $2,494,259 5.23 5.23 NAP 12.8% 10.8%
125 No $2,400,000 $2,400,000 8.31 8.31 NAP 9.7% 9.7%
128 No $2,390,000 $2,374,060 8.07 8.07 NAP 6.4% 4.2%
129 No $2,250,000 $2,246,544 4.01 4.01 NAP 12.5% 11.6%
131 No $2,100,000 $2,094,044 3.61 3.61 NAP 15.9% 13.7%
133 No $2,000,000 $1,983,366 9.17 9.17 NAP 3.7% 0.1%
135 No $1,900,000 $1,892,354 2.15 1.96 NAP 55.9% 47.7%
136 No $1,840,000 $1,840,000 2.03 1.69 1.43 76.0% 67.3%
138 No $1,825,000 $1,819,294 5.30 5.30 NAP 13.4% 11.3%
141 No $1,700,000 $1,700,000 1.45 1.45 1.22 68.0% 61.5%
142 No $1,700,000 $1,689,346 2.45 2.31 NAP 47.2% 40.7%
143 No $1,650,000 $1,643,510 1.49 1.43 NAP 65.7% 56.2%
144 No $1,650,000 $1,642,879 11.72 11.72 NAP 3.6% 3.0%
145 No $1,600,000 $1,588,589 8.41 8.41 NAP 3.9% 0.1%
148 No $1,500,000 $1,494,212 1.29 1.29 NAP 71.2% 61.0%
150 No $1,464,000 $1,459,734 1.27 1.22 NAP 79.8% 68.3%
153 No $1,410,000 $1,401,275 1.23 1.19 NAP 75.7% 65.5%
154 No $1,400,000 $1,394,366 1.83 1.64 NAP 58.1% 49.5%
155 No $1,376,000 $1,372,977 1.39 1.33 NAP 79.8% 67.8%
156 No $1,350,000 $1,350,000 15.50 15.50 NAP 3.0% 3.0%
157 No $1,285,000 $1,283,940 4.31 4.31 NAP 16.7% 15.6%
159 No $1,200,000 $1,200,000 4.10 3.98 3.34 36.4% 32.2%
160 No $1,100,000 $1,096,783 1.66 1.56 NAP 67.3% 57.6%
161 No $1,100,000 $1,095,359 4.51 4.51 NAP 7.8% 6.6%
162 No $1,050,000 $1,047,785 1.31 1.25 NAP 79.4% 67.9%
164 No $1,040,000 $1,035,995 1.34 1.31 NAP 60.9% 52.3%
165 No $1,000,000 $998,680 5.47 5.47 NAP 7.0% 6.4%
166 No $1,000,000 $996,808 6.33 6.33 NAP 15.1% 12.8%
167 No $950,000 $945,846 1.34 1.27 NAP 75.7% 65.5%
168 No $824,000 $822,921 1.39 1.32 NAP 79.9% 68.3%
169 No $800,000 $798,913 3.49 3.49 NAP 18.6% 17.5%
170 No $790,000 $785,387 9.52 9.52 NAP 6.1% 4.7%
171 No $616,000 $614,647 1.36 1.32 NAP 79.8% 67.8%
172 No $500,000 $500,000 12.68 12.68 NAP 4.8% 4.8%
173 No $450,000 $450,000 7.88 7.88 NAP 10.3% 10.3%
174 No $345,000 $341,605 5.57 5.57 NAP 5.7% 0.1%
Totals and Weighted Averages: $197,100,424 $196,684,571 4.42x 1.64x 1.91x 32.9% 28.2%
Mortgage
Loan No. Street Address City State Zip Code Property Type
-------- ------------------------------------------------- --------------------- ------ -------- -----------
27 257 & 000 Xxxx Xxxxxx Xxxxxxxxx XX 00000 Office
31 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Xxxxxx
00 000-00 Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx XX 00000 Multifamily
41 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxxxxxx XX 00000 Multifamily
47 000-00 000xx Xxxxxx Xxxxxxxxx XX 00000 Multifamily
48 000/000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Multifamily
50 000-X Xxxxx Xxxxxx Xxxxxxxxx XX 00000 Multifamily
53 000 Xxxx Xxxx Xxxx Xxxxxx Xxxxx XX 00000 Multifamily
63 125, 138, 156, 162, 179, 186, & 197 X. Xxxxxx and
202, 220, & 000 X. Xxxxxx Xx., 105 & 113 S. & 000
X. Xxxxx Xx., and 132 & 000 X. Xxxxxxx Xx. Xxxxxxxxxxxxx XX 00000 Mixed Use
66 0000 Xxxxx Xxxxx Xxxxx XX 00000 Multifamily
75 000-000 Xxxxxx Xxxxxx Xxx Xxxx XX 00000 Multifamily
00 Xxxxx Xxxxxxxx Xxxxxx xxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 Multifamily
81 000 Xxxxxxxx Xxxx XX Xxxxxxx XX 00000 Multifamily
83 000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 Multifamily
90 18-40/50/70 000xx Xxxxxx and 000-00 00xx Xxxxxx Xxxxxxx XX 00000 Multifamily
96 00000 Xxxx Xxxx Xxxx XX 00000 Retail
102 000 Xxxxx 000 Xxxxxxxxx XX 00000 Multifamily
109 0000 Xxxxxxxxxxx Xxxxxx XX Xxxxxxxxxx XX 00000 Multifamily
111 00-00 Xxxxxxxx Xxxxx Xxxxxx Xxxxx XX 00000 Multifamily
113 000-00 00xx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
118 192-02 THRU 000-00 00xx Xxxxxx Xxxxxxxx XX 00000 Multifamily
121 000-000 Xxxxxx Xxxxx Xxxxxxxx XX 00000 Retail
122 000-000 Xxxxxxx Xxxx Xxxxxxxxxx Xxxxx XX 00000 Multifamily
123 000-00 Xxxxxxxxx Xxxxxx and 000-00 Xxxxxxx Xxxx Xxxxxxxx XX 00000 Multifamily
124 00 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000 Multifamily
125 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Multifamily
128 000 Xxxxxxxx Xxx Xxxx XX 00000 Multifamily
129 0000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Multifamily
131 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 Multifamily
133 000 Xxxx Xxx Xxxxxx Xxx Xxxx XX 00000 Multifamily
135 000 Xxxxxx Xxxxxx Xxx Xx. Xxxxx XX 00000 Multifamily
136 0000 Xxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 Xxxxxx
000 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Multifamily
141 000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Other
142 000 XxXxxxxxxxx Xxxxxx Xxx Xx. Xxxxx XX 00000 Multifamily
143 00 Xxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Retail
144 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 Multifamily
145 000 Xxxx Xxx Xxxxxx Xxx Xxxx XX 00000 Multifamily
148 000 Xxxxx Xxxx Xxxxxxxxxx XX 00000 Other
150 000-000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Mixed Use
153 0000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Retail
154 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 Multifamily
155 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Multifamily
156 000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX 00000 Multifamily
157 00-00 000xx Xxxxxx Xxxxxxx XX 00000 Multifamily
159 0000 Xxxx Xxx Xxxxxx Xxxx Xxxx XX 00000 Retail
160 000-000 X. Xxxx Xxxxxx and 00 X. Xxxxx Xxxxxx Xxxxxxxx XX 00000 Office
161 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Multifamily
162 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Mixed Use
164 000 Xxxxxx Xxxx Xxxxx Xxxxx XX 00000 Xxxxxx
000 00 Xxxxxxxxx Xxxx Xxxx Xxxxxxxxxx XX 00000 Multifamily
166 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Multifamily
167 0000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxx XX 00000 Xxxxxx
000 000-000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Mixed Use
169 0000-0-0 Xxxxxx Xxxxxx Xxxxx XX 00000 Multifamily
170 00-00 Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Multifamily
171 402 & 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000 Mixed Use
172 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Multifamily
173 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 Multifamily
174 0000-0000 Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Multifamily
Totals and Weighted Averages:
Mortgage Percent
Loan No. Property Sub-Type Units/SF Year Built Year Renovated Leased(5)
-------- ------------------ -------- ----------------------------------------- -------------- ---------
27 Suburban 72,052 1979 / 1988 NAP 95.2%
31 Medical 70,229 1977 2006 100.0%
39 Cooperative 342 1970 1972 NAP
41 Cooperative 178 1962 1985 NAP
47 Cooperative 382 1948 1991 NAP
48 Cooperative 134 1900 1995 NAP
50 Cooperative 308 1970-1972 2004 / 2005 NAP
53 Cooperative 299 1971 NAP NAP
63 Retail/Office 51,802 1925 / 1952 / 1930 / 1950 /
1955 / 1908 / 1938 / 1948 / 1939 / 1910 2004 99.5%
66 Cooperative 394 1971 NAP NAP
75 Cooperative 170 1925 NAP NAP
76 Cooperative 183 1961 NAP NAP
81 Cooperative 240 1972 2005 NAP
83 Cooperative 258 1969 NAP NAP
90 Cooperative 240 1957 NAP NAP
96 Unanchored 50,028 1988 NAP 100.0%
102 Cooperative 48 1963 NAP NAP
109 Cooperative 52 1928 NAP NAP
111 Cooperative 111 1962 NAP NAP
113 Cooperative 108 1952 NAP NAP
118 Cooperative 95 1950 NAP NAP
121 Anchored 56,568 1993 NAP 100.0%
122 Cooperative 78 1955 NAP NAP
123 Cooperative 108 1955 2000 NAP
124 Cooperative 87 1952 1991 NAP
125 Cooperative 36 1921 NAP NAP
128 Cooperative 9 1860 1998 NAP
129 Cooperative 65 1970 NAP NAP
131 Cooperative 65 1951 NAP NAP
133 Cooperative 82 1916 NAP NAP
000 Xxx Xxxx 67 1963 1995 95.5%
136 Urban 49,161 1930 1996 73.6%
138 Cooperative 74 1961-1966 NAP NAP
141 Leased Fee 14,000 2006 NAP 100.0%
142 Garden 71 1955 2005 93.0%
143 Free Standing 22,680 2004 NAP 100.0%
144 Cooperative 33 1901 NAP NAP
145 Cooperative 26 1916 NAP NAP
148 Leased Fee 2,083 2007 NAP 100.0%
150 Multifamily/Office 13,974 1910 2006 100.0%
153 Free Standing 10,722 1997 NAP 100.0%
154 Garden 68 1980 NAP 97.1%
000 Xxx Xxxx 23 Early 1900s 2006 100.0%
156 Cooperative 29 1924 NAP NAP
157 Cooperative 65 1954 1996 NAP
159 Free Standing 23,000 1977 NAP 100.0%
160 Urban 9,744 1900 NAP 100.0%
161 Cooperative 10 1911 NAP NAP
162 Multifamily/Retail 8,331 1911 2005 85.2%
164 Suburban 5,250 1980 NAP 100.0%
165 Cooperative 19 1920 NAP NAP
166 Cooperative 54 1965 1991 NAP
167 Urban 5,136 2006 NAP 100.0%
168 Multifamily/Retail 8,362 1900 2004 100.0%
169 Cooperative 36 1953 NAP NAP
170 Cooperative 27 1930 NAP NAP
171 Multifamily/Retail 7,684 Early 1900s 2003-2006 100.0%
172 Cooperative 7 1915 2000 NAP
173 Cooperative 10 1925 2001 NAP
174 Cooperative 28 1961 NAP NAP
Totals and Weighted Averages:
Mortgage Percent Leased Related Cut-Off Date Balance First Payment
Loan No. as of Date(5) Security Type(6) Lien Position Borrower List per Unit or SF Note Date Date (P&I)(7)
-------- -------------- ---------------- ------------- ------------- -------------------- ---------- -------------
27 01/25/2007 Fee First $217 02/09/2007 04/01/2009
31 03/01/2007 Fee First $202 10/19/2006 04/01/2007
39 NAP Fee First $29,150 10/27/2006 12/01/2006
41 NAP Fee First $52,698 10/03/2006 12/01/2006
47 NAP Fee First $22,222 12/04/2006 02/01/2007
48 NAP Fee First $63,167 10/03/2006 12/01/2006
50 NAP Fee First $25,995 12/19/2006 10/01/2007
53 NAP Fee First $25,386 12/13/2006 02/01/2007
63 12/01/2006 Fee First $125 12/21/2006 02/01/2009
66 NAP Fee First $16,273 12/22/2006 02/01/2007
75 NAP Fee First $32,887 11/17/2006 01/01/2007
76 NAP Fee First $29,957 11/02/2006 01/01/2007
81 NAP Fee First $20,790 12/20/2006 02/01/2007
83 NAP Fee First $17,971 11/29/2006 01/01/2007
90 NAP Leasehold First $17,476 11/03/2006 01/01/2007
96 11/15/2006 Fee First 96, 159 $74 11/17/2006 01/01/2009
102 NAP Fee First $72,823 12/20/2006 02/01/2007
109 NAP Fee First $62,248 10/02/2006 12/01/2006
111 NAP Fee First $28,577 10/24/2006 12/01/2006
113 NAP Fee First $27,778 10/03/2006 NAP
118 NAP Fee First $30,464 10/02/2006 12/01/2006
121 10/30/2006 Fee First $48 12/29/2006 02/01/2007
122 NAP Fee First $33,269 10/02/2006 12/01/2006
123 NAP Leasehold First $23,120 12/20/2006 02/01/2007
124 NAP Fee First $28,670 12/05/2006 02/01/2007
125 NAP Fee First $66,667 12/06/2006 NAP
128 NAP Fee First $263,784 11/07/2006 01/01/2007
129 NAP Fee First $34,562 11/30/2006 01/01/2007
131 NAP Fee First $32,216 11/30/2006 01/01/2007
133 NAP Fee First $24,187 10/31/2006 12/01/2006
135 10/23/2006 Fee First 135, 142, 154 $28,244 10/31/2006 12/01/2006
136 03/01/2007 Fee First $37 01/09/2007 03/01/2009
138 NAP Fee First $24,585 11/29/2006 01/01/2007
141 03/01/2007 Fee First $121 01/10/2007 03/01/2010
142 01/12/2007 Fee First 135, 142, 154 $23,794 07/20/2006 09/01/2006
143 09/01/2006 Leasehold First $72 10/18/2006 12/01/2006
144 NAP Fee First $49,784 10/25/2006 12/01/2006
145 NAP Fee First $61,100 12/14/2006 02/01/2007
148 09/30/2006 Fee First $717 10/30/2006 12/01/2006
150 01/29/2007 Fee First 150, 162, 168 $104 11/03/2006 01/01/2007
153 06/05/2006 Fee First $131 07/27/2006 09/01/2006
154 10/01/2006 Fee First 135, 142, 154 $20,505 10/31/2006 12/01/2006
155 NAP Fee First 155, 171 $59,695 12/27/2006 02/01/2007
156 NAP Fee First $46,552 10/24/2006 NAP
157 NAP Fee First $19,753 01/30/2007 03/01/2007
159 03/01/2007 Fee First 96, 159 $52 11/17/2006 01/01/2009
160 10/05/2006 Fee First $113 11/30/2006 01/01/2007
161 NAP Fee First $109,536 10/18/2006 12/01/2006
162 01/29/2007 Fee First 150, 162, 168 $126 12/21/2006 02/01/2007
164 09/01/2006 Fee First $197 10/12/2006 12/01/2006
165 NAP Fee First $52,562 12/07/2006 02/01/2007
166 NAP Fee First $18,459 11/08/2006 01/01/2007
167 09/01/2006 Fee First $184 09/06/2006 11/01/2006
168 01/29/2007 Leasehold First 150, 162, 168 $98 01/04/2007 03/01/2007
169 NAP Fee First $22,192 11/30/2006 01/01/2007
170 NAP Fee First $29,088 10/26/2006 12/01/2006
171 NAP Fee First 155, 171 $80 12/27/2006 02/01/2007
172 NAP Fee First $71,429 12/11/2006 NAP
173 NAP Fee First $45,000 12/11/2006 NAP
174 NAP Fee First $12,200 11/20/2006 01/01/2007
Totals and Weighted Averages:
Mortgage First Payment
Loan No. Date (IO)(7) Maturity Date Due Date Grace Period(8) ARD Loan Lockbox Status Lockbox Type
-------- ------------- ------------- -------- --------------- -------- -------------- --------------------
27 04/01/2007 03/01/2017 1 10 No NAP NAP
31 12/01/2006 04/01/2017 1 10 No NAP NAP
39 NAP 11/01/2016 1 9 No NAP NAP
41 NAP 11/01/2016 1 9 No NAP NAP
47 NAP 01/01/2017 1 9 No NAP NAP
48 NAP 11/01/2016 1 9 No NAP NAP
50 02/01/2007 01/01/2017 1 9 No NAP NAP
53 NAP 01/01/2017 1 9 No NAP NAP
63 02/01/2007 01/01/2017 1 10 No NAP NAP
66 NAP 01/01/2022 1 9 No NAP NAP
75 NAP 12/01/2016 1 9 No NAP NAP
76 NAP 12/01/2016 1 9 No NAP NAP
81 NAP 01/01/2017 1 9 No NAP NAP
83 NAP 12/01/2021 1 9 No NAP NAP
90 NAP 12/01/2016 1 9 No NAP NAP
96 01/01/2007 12/01/2016 1 10 No NAP NAP
102 NAP 01/01/2017 1 9 No NAP NAP
109 NAP 11/01/2016 1 9 No NAP NAP
111 NAP 11/01/2026 1 9 No NAP NAP
113 12/01/2006 11/01/2016 1 9 No NAP NAP
118 NAP 11/01/2016 1 9 No NAP NAP
121 NAP 01/01/2017 1 10 No NAP NAP
122 NAP 11/01/2016 1 9 No NAP NAP
123 NAP 01/01/2017 1 9 No NAP NAP
124 NAP 01/01/2017 1 9 No NAP NAP
125 02/01/2007 01/01/2017 1 9 No NAP NAP
128 NAP 12/01/2016 1 9 No NAP NAP
129 NAP 12/01/2016 1 9 No NAP NAP
131 NAP 12/01/2016 1 9 No NAP NAP
133 NAP 11/01/2026 1 9 No NAP NAP
135 NAP 11/01/2016 1 15 No NAP NAP
136 03/01/2007 02/01/2017 1 10 No NAP NAP
138 NAP 12/01/2016 1 9 No NAP NAP
141 03/01/2007 02/01/2017 1 10 No NAP NAP
142 NAP 08/01/2016 1 15 No NAP NAP
143 NAP 11/01/2016 1 10 No In-Place Hard
144 NAP 11/01/2016 1 9 No NAP NAP
145 NAP 01/01/2022 1 9 No NAP NAP
148 NAP 11/01/2016 1 10 No In-Place Hard
150 NAP 12/01/2016 1 10 No NAP NAP
153 NAP 08/01/2016 1 10 No NAP NAP
154 NAP 11/01/2016 1 10 No NAP NAP
155 NAP 01/01/2017 1 10 No NAP NAP
156 12/01/2006 11/01/2016 1 9 No NAP NAP
157 NAP 02/01/2017 1 9 No NAP NAP
159 01/01/2007 12/01/2016 1 10 No NAP NAP
160 NAP 12/01/2016 1 10 No NAP NAP
161 NAP 11/01/2016 1 9 No NAP NAP
162 NAP 01/01/2017 1 10 No NAP NAP
164 NAP 11/01/2016 1 10 No NAP NAP
165 NAP 01/01/2017 1 9 No NAP NAP
166 NAP 12/01/2016 1 9 No NAP NAP
167 NAP 10/01/2016 1 0 No NAP NAP
168 NAP 02/01/2017 1 10 No NAP NAP
169 NAP 12/01/2016 1 9 No NAP NAP
170 NAP 11/01/2016 1 9 No NAP NAP
171 NAP 01/01/2017 1 10 No NAP NAP
172 02/01/2007 01/01/2017 1 9 No NAP NAP
173 02/01/2007 01/01/2017 1 9 No NAP NAP
174 NAP 12/01/2021 1 9 No NAP NAP
Totals and Weighted Averages:
Mortgage Original Remaining Term Original Remaining Monthly
Loan No. Term to Maturity to Maturity Amort. Term(9) Amort. Term Mortgage Rate Monthly Payment (P&I) Payment (IO)
-------- ---------------- -------------- -------------- ----------- ------------- --------------------- -------------
27 120 120 360 360 5.910% $92,629 $77,897
31 125 121 360 360 6.100% $86,051 $73,186
39 120 116 420 416 5.640% $54,622 NAP
41 120 116 480 476 5.870% $50,871 NAP
47 120 118 480 478 5.500% $43,840 NAP
48 120 116 360 356 5.770% $49,712 NAP
50 120 118 352 352 6.230% $49,578 $42,144
53 120 118 480 478 5.650% $39,977 NAP
63 120 118 360 360 5.790% $38,098 $31,798
66 180 178 360 358 6.200% $39,351 NAP
75 120 117 480 477 5.700% $29,649 NAP
76 120 117 360 357 5.550% $31,401 NAP
81 120 118 360 358 6.230% $30,721 NAP
83 180 177 360 357 6.210% $28,510 NAP
90 120 117 480 477 6.310% $24,023 NAP
96 120 117 360 360 5.860% $21,851 $18,319
102 120 118 480 478 5.570% $18,219 NAP
109 120 116 240 236 6.420% $24,182 NAP
111 240 236 240 236 5.990% $22,907 NAP
113 120 116 IO IO 5.990% NAP $15,183
118 120 116 480 476 5.980% $15,916 NAP
121 120 118 360 358 5.820% $15,877 NAP
122 120 116 480 476 6.190% $14,651 NAP
123 120 118 480 478 5.770% $13,357 NAP
124 120 118 360 358 5.630% $14,399 NAP
125 120 118 IO IO 5.540% NAP $11,234
128 120 117 240 237 5.810% $16,862 NAP
129 120 117 480 477 5.940% $12,286 NAP
131 120 117 360 357 6.290% $12,985 NAP
133 240 236 240 236 6.400% $14,794 NAP
135 120 116 360 356 5.980% $11,367 NAP
136 120 119 360 360 5.910% $10,925 $9,188
138 120 117 360 357 5.780% $10,685 NAP
141 120 119 360 360 5.990% $10,181 $8,604
142 120 113 360 353 6.340% $10,567 NAP
143 120 116 360 356 6.100% $9,999 NAP
144 120 116 360 356 5.610% $9,483 NAP
145 180 178 180 178 5.870% $13,390 NAP
148 120 116 360 356 6.200% $9,187 NAP
150 120 117 360 357 6.150% $8,919 NAP
153 120 113 360 353 6.400% $8,820 NAP
154 120 116 360 356 5.980% $8,376 NAP
155 120 118 360 358 5.900% $8,162 NAP
156 120 116 IO IO 5.550% NAP $6,330
157 120 119 480 479 6.130% $7,187 NAP
159 120 117 360 360 5.860% $7,087 $5,941
160 120 117 360 357 6.130% $6,687 NAP
161 120 116 360 356 5.730% $6,405 NAP
162 120 118 360 358 6.150% $6,397 NAP
164 120 116 360 356 6.210% $6,376 NAP
165 120 118 480 478 5.440% $5,117 NAP
166 120 117 360 357 5.670% $5,785 NAP
167 120 115 360 355 6.510% $6,011 NAP
168 120 119 360 359 6.150% $5,020 NAP
169 120 117 480 477 6.390% $4,621 NAP
170 120 116 300 296 5.970% $5,076 NAP
171 120 118 360 358 5.900% $3,654 NAP
172 120 118 IO IO 5.790% NAP $2,446
173 120 118 IO IO 6.000% NAP $2,281
174 180 177 180 177 6.610% $3,026 NAP
Totals and Weighted
Averages: 128 125 373 370 5.971%
Mortgage Third Most Third Most Recent Second Most Second Most Recent
Loan No. Recent NOI(10) NOI End Date Recent NOI NOI End Date Most Recent NOI Most Recent NOI End Date
-------- -------------- ----------------- ----------- ------------------ --------------- ------------------------
27 $702,045 12/31/2004 $983,600 12/31/2005 $1,158,720 12/31/2006
31 NAP NAP NAP NAP NAP NAP
39 NAP NAP NAP NAP NAP NAP
41 NAP NAP NAP NAP NAP NAP
47 NAP NAP NAP NAP NAP NAP
48 NAP NAP NAP NAP NAP NAP
50 NAP NAP NAP NAP NAP NAP
53 NAP NAP NAP NAP NAP NAP
63 NAP NAP NAP NAP NAP NAP
66 NAP NAP NAP NAP NAP NAP
75 NAP NAP NAP NAP NAP NAP
76 NAP NAP NAP NAP NAP NAP
81 NAP NAP NAP NAP NAP NAP
83 NAP NAP NAP NAP NAP NAP
90 NAP NAP NAP NAP NAP NAP
96 $379,457 12/31/2004 $368,606 12/31/2005 $276,087 T-9 (9/30/06) Xxx.
102 NAP NAP NAP NAP NAP NAP
109 NAP NAP NAP NAP NAP NAP
111 NAP NAP NAP NAP NAP NAP
113 NAP NAP NAP NAP NAP NAP
118 NAP NAP NAP NAP NAP NAP
121 $390,063 12/31/2004 $368,218 12/31/2005 $320,800 T-10 (10/31/06) Xxx.
122 NAP NAP NAP NAP NAP NAP
123 NAP NAP NAP NAP NAP NAP
124 NAP NAP NAP NAP NAP NAP
125 NAP NAP NAP NAP NAP NAP
128 NAP NAP NAP NAP NAP NAP
129 NAP NAP NAP NAP NAP NAP
131 NAP NAP NAP NAP NAP NAP
133 NAP NAP NAP NAP NAP NAP
135 $174,251 12/31/2004 $169,181 12/31/2005 $138,738 T-10 (10/31/06) Xxx.
136 $200,556 12/31/2004 $200,810 12/31/2005 $178,205 T-9 (9/30/06) Xxx.
138 NAP NAP NAP NAP NAP NAP
141 NAP NAP NAP NAP NAP NAP
142 $237,855 12/31/2004 $120,659 12/31/2005 $18,937 T-10 (10/31/06) Xxx.
143 NAP NAP NAP NAP NAP NAP
144 NAP NAP NAP NAP NAP NAP
145 NAP NAP NAP NAP NAP NAP
148 NAP NAP NAP NAP NAP NAP
150 NAP NAP NAP NAP NAP NAP
153 $133,247 12/31/2003 $125,093 12/31/2004 $131,344 12/31/2005
154 $92,187 12/31/2004 $140,756 12/31/2005 $178,191 T-9 (9/30/06) Xxx.
155 NAP NAP NAP NAP NAP NAP
156 NAP NAP NAP NAP NAP NAP
157 NAP NAP NAP NAP NAP NAP
159 $138,699 12/31/2003 $192,500 12/31/2004 $187,902 12/31/2005
160 NAP NAP NAP NAP NAP NAP
161 NAP NAP NAP NAP NAP NAP
162 NAP NAP NAP NAP NAP NAP
164 $102,017 12/31/2003 $105,096 12/31/2004 $112,119 12/31/2005
165 NAP NAP NAP NAP NAP NAP
166 NAP NAP NAP NAP NAP NAP
167 NAP NAP NAP NAP NAP NAP
168 NAP NAP NAP NAP NAP NAP
169 NAP NAP NAP NAP NAP NAP
170 NAP NAP NAP NAP NAP NAP
171 NAP NAP NAP NAP NAP NAP
172 NAP NAP NAP NAP NAP NAP
173 NAP NAP NAP NAP NAP NAP
174 NAP NAP NAP NAP NAP NAP
Totals and Weighted Averages:
Mortgage
Loan No. Underwritten EGI Underwritten Expenses Underwritable NOI Underwritten Reserves Underwritable Cash Flow
-------- ---------------- --------------------- ----------------- --------------------- -----------------------
27 $2,151,758 $731,717 $1,420,041 $54,071 $1,365,970
31 $1,560,478 $296,514 $1,263,964 $10,534 $1,253,430
39 $5,608,903 $3,171,143 $2,437,760 $51,300 $2,437,760
41 $4,138,585 $1,967,000 $2,171,585 $54,000 $2,171,585
47 $4,528,253 $2,290,643 $2,237,610 $57,600 $2,237,610
48 $4,199,165 $1,384,540 $2,814,625 $50,800 $2,814,625
50 $3,683,040 $1,719,726 $1,963,314 $44,205 $1,963,314
53 $5,417,580 $2,315,300 $3,102,280 $110,000 $3,102,280
63 $808,415 $187,937 $620,479 $34,707 $585,771
66 $3,166,414 $1,826,767 $1,339,647 $145,806 $1,339,647
75 $4,225,920 $1,231,328 $2,994,593 $30,550 $2,994,593
76 $3,120,009 $1,440,108 $1,679,901 $18,500 $1,679,901
81 $1,993,670 $996,827 $996,843 $50,158 $996,843
83 $2,366,315 $974,349 $1,391,966 $37,757 $1,391,966
90 $5,398,660 $2,608,190 $2,790,470 $90,500 $2,790,470
96 $747,972 $127,734 $620,238 $20,011 $600,227
102 $887,110 $222,023 $665,087 $5,900 $665,087
109 $1,643,714 $436,196 $1,207,517 $29,322 $1,207,517
111 $1,677,652 $671,610 $1,006,042 $48,550 $1,006,042
113 $1,283,417 $599,643 $683,774 $16,400 $683,774
118 $1,201,983 $563,511 $638,473 $21,471 $638,473
121 $495,823 $147,573 $348,251 $22,627 $325,623
122 $1,551,050 $736,330 $814,720 $22,123 $814,720
123 $1,950,426 $880,908 $1,069,518 $16,500 $1,069,518
124 $1,554,336 $649,830 $904,506 $49,000 $904,506
125 $1,571,217 $451,296 $1,119,921 $5,400 $1,119,921
128 $1,995,950 $364,019 $1,631,931 $1,800 $1,631,931
129 $1,117,953 $526,820 $591,133 $38,000 $591,133
131 $1,001,660 $438,886 $562,774 $15,336 $562,774
133 $2,646,854 $1,019,600 $1,627,254 $24,400 $1,627,254
135 $526,599 $233,948 $292,651 $25,192 $267,549
136 $490,807 $26,708 $223,740 $36,870 $186,870
138 $1,181,540 $501,399 $680,141 $11,300 $680,141
141 $150,000 $500 $149,500 $0 $149,500
142 $533,866 $223,343 $310,523 $17,040 $293,483
143 $235,669 $57,427 $178,243 $6,804 $171,439
144 $1,902,451 $568,830 $1,333,621 $25,000 $1,333,621
145 $1,821,150 $469,940 $1,351,210 $23,680 $1,351,210
148 $149,490 $6,985 $142,505 $0 $142,505
150 $172,924 $37,080 $135,844 $5,633 $130,211
153 $168,962 $39,313 $129,649 $3,253 $126,396
154 $434,318 $250,363 $183,955 $19,312 $164,643
155 $185,001 $48,649 $136,352 $5,750 $130,602
156 $2,201,865 $1,024,453 $1,177,412 $16,416 $1,177,412
157 $764,314 $392,640 $371,674 $14,500 $371,674
159 $356,205 $64,225 $291,979 $8,285 $283,694
160 $159,473 $25,937 $133,536 $8,380 $125,156
161 $659,547 $312,870 $346,677 $14,700 $346,677
162 $129,303 $29,087 $100,216 $4,039 $96,177
164 $138,111 $35,766 $102,345 $1,838 $100,508
165 $728,744 $393,131 $335,613 $13,369 $335,613
166 $761,168 $322,000 $439,168 $11,000 $439,168
167 $125,333 $28,376 $96,957 $5,650 $91,307
168 $145,541 $62,088 $83,453 $3,844 $79,609
169 $424,510 $230,784 $193,726 $9,849 $193,726
170 $897,929 $318,319 $579,610 $5,400 $579,610
171 $79,366 $19,705 $59,660 $1,860 $57,800
172 $519,840 $147,761 $372,079 $1,400 $372,079
173 $284,601 $68,775 $215,826 $1,000 $215,826
174 $351,120 $148,961 $202,159 $4,200 $202,159
Totals and Weighted Averages:
Cooperative Loans
------------------------------------------
Mortgage Unsold
Loan No. Balloon Balance Current Value(11) Source of Value Valuation Date Rental Value(12) LTV as Rental Percent
-------- --------------- ----------------- --------------- -------------- ---------------- ------------- -------
27 $13,827,853 $20,400,000 Appraisal 01/18/2007 NAP NAP NAP
31 $12,082,280 $17,800,000 Appraisal 02/01/2007 NAP NAP NAP
39 $8,891,660 $61,070,000 Appraisal 08/31/2006 $30,500,000 32.7% 11.4%
41 $8,717,205 $59,300,000 Appraisal 08/02/2005 $27,100,000 34.6% 32.0%
47 $7,815,687 $55,390,000 Appraisal 10/12/2006 $28,060,000 30.3% 9.2%
48 $7,173,510 $82,600,000 Appraisal 12/09/2005 $35,200,000 24.0% 5.2%
50 $6,893,985 $58,100,000 Appraisal 04/05/2006 $18,500,000 43.3% NAP
53 $7,012,705 $97,100,000 Appraisal 11/29/2006 $38,800,000 19.6% 21.1%
63 $5,741,687 $8,200,000 Appraisal 11/07/2006 NAP NAP NAP
66 $4,747,286 $22,550,000 Appraisal 07/25/2005 $16,750,000 38.3% NAP
75 $5,174,445 $79,400,000 Appraisal 09/20/2006 $37,400,000 14.9% 42.4%
76 $4,612,002 $34,510,000 Appraisal 09/07/2006 $21,000,000 26.1% NAP
81 $4,276,532 $19,940,000 Appraisal 11/01/2005 $11,100,000 45.0% NAP
83 $3,438,838 $33,850,000 Appraisal 02/16/2006 $15,500,000 29.9% NAP
90 $3,932,998 $69,700,000 Appraisal 07/18/2006 $37,300,000 11.2% NAP
96 $3,274,330 $6,400,000 Appraisal 07/07/2006 NAP NAP NAP
102 $3,223,531 $12,900,000 Appraisal 11/03/2006 $8,300,000 42.1% 10.4%
109 $2,150,008 $34,264,000 Appraisal 06/23/2006 $15,100,000 21.4% NAP
111 $96,897 $24,200,000 Appraisal 10/05/2006 $12,600,000 25.2% 17.1%
113 $3,000,000 $14,570,000 Appraisal 08/02/2006 $8,550,000 35.1% 49.1%
118 $2,695,901 $14,700,000 Appraisal 11/08/2005 $8,000,000 36.2% 21.1%
121 $2,281,987 $4,500,000 Appraisal 11/02/2006 NAP NAP NAP
122 $2,427,976 $20,900,000 Appraisal 09/15/2005 $10,200,000 25.4% 9.0%
123 $2,313,156 $21,870,000 Appraisal 11/01/2006 $13,400,000 18.6% NAP
124 $2,100,951 $19,500,000 Appraisal 10/25/2006 $11,300,000 22.1% 18.4%
125 $2,400,000 $24,640,000 Appraisal 10/26/2006 $14,000,000 17.1% 33.3%
128 $1,564,877 $37,140,000 Appraisal 08/14/2006 $20,400,000 11.6% NAP
129 $2,090,296 $18,000,000 Appraisal 11/02/2005 $7,400,000 30.4% 16.9%
131 $1,799,724 $13,150,000 Appraisal 06/01/2006 $7,000,000 29.9% 29.2%
133 $67,571 $54,000,000 Appraisal 05/10/2006 $22,400,000 8.9% 17.1%
135 $1,613,461 $3,385,000 Appraisal 10/20/2006 NAP NAP NAP
136 $1,629,646 $2,420,000 Appraisal 12/08/2006 NAP NAP NAP
138 $1,541,022 $13,580,000 Appraisal 10/16/2006 $8,500,000 21.4% 40.5%
141 $1,538,005 $2,500,000 Appraisal 11/15/2006 NAP NAP NAP
142 $1,458,797 $3,580,000 Appraisal 07/31/2006 NAP NAP NAP
143 $1,406,050 $2,500,000 Appraisal 09/25/2006 NAP NAP NAP
144 $1,385,815 $45,550,000 Appraisal 09/13/2006 $16,700,000 9.8% NAP
145 $34,225 $41,000,000 Appraisal 10/31/2006 $16,900,000 9.4% NAP
148 $1,281,896 $2,100,000 Appraisal 09/26/2006 NAP NAP NAP
150 $1,249,666 $1,830,000 Appraisal 09/10/2006 NAP NAP NAP
153 $1,211,982 $1,850,000 Appraisal 07/03/2006 NAP NAP NAP
154 $1,188,866 $2,400,000 Appraisal 09/27/2006 NAP NAP NAP
155 $1,165,721 $1,720,000 Appraisal 10/11/2006 NAP NAP NAP
156 $1,350,000 $44,350,000 Appraisal 09/25/2006 $14,700,000 9.2% NAP
157 $1,198,311 $7,685,000 Appraisal 01/23/2006 $4,500,000 28.5% 10.8%
159 $1,061,945 $3,300,000 Appraisal 07/07/2006 NAP NAP NAP
160 $938,417 $1,630,000 Appraisal 10/11/2006 NAP NAP NAP
161 $927,227 $14,000,000 Appraisal 09/26/2006 $4,300,000 25.5% NAP
162 $896,023 $1,320,000 Appraisal 09/10/2006 NAP NAP NAP
164 $889,035 $1,700,000 Appraisal 07/20/2006 NAP NAP NAP
165 $918,181 $14,300,000 Appraisal 09/28/2006 $4,200,000 23.8% NAP
166 $841,610 $6,600,000 Appraisal 10/05/2006 $5,500,000 18.1% 14.8%
167 $819,209 $1,250,000 Appraisal 08/01/2006 NAP NAP NAP
168 $703,085 $1,030,000 Appraisal 09/10/2006 NAP NAP NAP
169 $750,383 $4,300,000 Appraisal 02/14/2006 $2,400,000 33.3% 5.6%
170 $613,066 $12,920,000 Appraisal 08/31/2006 $7,730,000 10.2% NAP
171 $521,864 $770,000 Appraisal 10/11/2006 NAP NAP NAP
172 $500,000 $10,350,000 Appraisal 11/01/2006 $4,800,000 10.4% NAP
173 $450,000 $4,370,000 Appraisal 11/01/2006 $2,700,000 16.7% NAP
174 $8,656 $5,960,000 Appraisal 08/15/2006 $3,370,000 10.1% NAP
Totals and Weighted Averages:
Cooperative Loans
----------------------------------------------------------------
Mortgage Sponsor/ Lease
Loan No. Sponsor Units Investor Units Coop Units Investor Carry Largest Tenant(13) Expiration Date
-------- ------------- -------------- ---------- ------------------- --------------------------------- ----------------
27 NAP NAP NAP NAP Telecommunications Systems, Inc. 03/31/2008
31 NAP NAP NAP NAP The Trustees of The University of
Pennsylvania 02/28/2027
39 NAP 39 NAP $101,244 NAP NAP
41 27 30 NAP $197,843 / $197,437 NAP NAP
47 34 NAP 1 -$16,207 NAP NAP
48 7 NAP NAP $11,757 NAP NAP
50 NAP NAP NAP NAP NAP NAP
53 63 NAP NAP NAP NAP NAP
63 NAP NAP NAP NAP Elm Industries 08/31/2016
66 NAP NAP NAP NAP NAP NAP
75 61 11 NAP $90,772 / $219,477 NAP NAP
76 NAP NAP NAP NAP NAP NAP
81 NAP NAP NAP NAP NAP NAP
83 NAP NAP NAP NAP NAP NAP
90 NAP NAP NAP NAP NAP NAP
96 NAP NAP NAP NAP Xxxxxx'x Novi, Inc. 08/31/2021
102 5 NAP NAP $9,825 NAP NAP
109 NAP NAP NAP NAP NAP NAP
111 19 NAP NAP $53,921 NAP NAP
113 NAP 53 NAP $217,460 NAP NAP
118 20 NAP NAP $26,627 NAP NAP
121 NAP NAP NAP NAP Food Lion, Inc. 10/27/2017
122 7 NAP NAP $22,646 NAP NAP
123 NAP NAP NAP NAP NAP NAP
124 16 NAP NAP $90,528 NAP NAP
125 12 NAP NAP -$16,629 NAP NAP
128 NAP NAP NAP NAP NAP NAP
129 11 NAP NAP $56,659 NAP NAP
131 19 NAP NAP $59,033 NAP NAP
133 14 NAP NAP -$12,840 NAP NAP
135 NAP NAP NAP NAP NAP NAP
136 NAP NAP NAP NAP Pressley Ridge 11/30/2007
138 30 NAP NAP $54,083 NAP NAP
141 NAP NAP NAP NAP CVS 3805 SC, L.L.C. 01/31/2032
142 NAP NAP NAP NAP NAP NAP
143 NAP NAP NAP NAP Tractor Supply Company 11/30/2019
144 NAP NAP NAP NAP NAP NAP
145 NAP NAP NAP NAP NAP NAP
148 NAP NAP NAP NAP Wachovia Bank 08/31/2026
150 NAP NAP NAP NAP Legal Aid Justice Center 10/31/2012
153 NAP NAP NAP NAP Revco Discount Drug Centers, Inc. 08/31/2017
154 NAP NAP NAP NAP NAP NAP
155 NAP NAP NAP NAP NAP NAP
156 NAP NAP NAP NAP NAP NAP
157 7 NAP NAP $5,737 NAP NAP
159 NAP NAP NAP NAP Xxxxxx'x Xxxx, Inc. 08/31/2021
160 NAP NAP NAP NAP Topline Inc. 10/31/2018
161 NAP NAP NAP NAP NAP NAP
162 NAP NAP NAP NAP 1-Xxxxxxx, Inc. 10/31/2011
164 NAP NAP NAP NAP Adeler, Inc. 11/01/2018
165 NAP NAP NAP NAP NAP NAP
166 8 NAP NAP $9,770 NAP NAP
000 XXX XXX XXX XXX Xxx Xxxxxx Xxxxxx of America 08/31/2016
168 NAP NAP NAP NAP Richmond Toyz 12/31/2011
169 2 NAP NAP -$7 NAP NAP
170 NAP NAP NAP NAP NAP NAP
171 NAP NAP NAP NAP Bayou Rental Office 10/31/2011
172 NAP NAP NAP NAP NAP NAP
173 NAP NAP NAP NAP NAP NAP
174 NAP NAP NAP NAP NAP NAP
Totals and Weighted Averages:
Mortgage Lease
Loan No. % NSF Second Largest Tenant Expiration Date % NSF Third Largest Tenant
-------- ----- ----------------------------------------- --------------- ------ ----------------------------------
27 30.1% Towne Part, LTD 06/30/2010 13.4% American Home Mortgage
31 100.0% NAP NAP NAP NAP
39 NAP NAP NAP NAP NAP
41 NAP NAP NAP NAP NAP
47 NAP NAP NAP NAP NAP
48 NAP NAP NAP NAP NAP
50 NAP NAP NAP NAP NAP
53 NAP NAP NAP NAP NAP
63 17.8% Lil River Grill 05/14/2010 11.9% Scotland Yard
66 NAP NAP NAP NAP NAP
75 NAP NAP NAP NAP NAP
76 NAP NAP NAP NAP NAP
81 NAP NAP NAP NAP NAP
83 NAP NAP NAP NAP NAP
90 NAP NAP NAP NAP NAP
96 95.0% Xx. Xxxxx Xxxxxx and Associates, O.D.P.C. 12/31/2008 5.0% NAP
102 NAP NAP NAP NAP NAP
109 NAP NAP NAP NAP NAP
111 NAP NAP NAP NAP NAP
113 NAP NAP NAP NAP NAP
118 NAP NAP NAP NAP NAP
121 70.3% Family Dollar Store of Maryland, Inc. 12/31/2007 16.0% Xxxx Xxxxx Corp.
122 NAP NAP NAP NAP NAP
123 NAP NAP NAP NAP NAP
124 NAP NAP NAP NAP NAP
125 NAP NAP NAP NAP NAP
128 NAP NAP NAP NAP NAP
129 NAP NAP NAP NAP NAP
131 NAP NAP NAP NAP NAP
133 NAP NAP NAP NAP NAP
135 NAP NAP NAP NAP NAP
136 14.2% Markesberg & Xxxxxxxxxx Co., LPA 07/31/2010 13.2% Neighborhood Reinvestment Corp.
138 NAP NAP NAP NAP NAP
141 100.0% NAP NAP NAP NAP
142 NAP NAP NAP NAP NAP
143 100.0% NAP NAP NAP NAP
144 NAP NAP NAP NAP NAP
145 NAP NAP NAP NAP NAP
148 100.0% NAP NAP NAP NAP
150 40.6% NAP NAP NAP NAP
153 100.0% NAP NAP NAP NAP
154 NAP NAP NAP NAP NAP
155 NAP NAP NAP NAP NAP
156 NAP NAP NAP NAP NAP
157 NAP NAP NAP NAP NAP
159 100.0% NAP NAP NAP NAP
160 39.4% Advertising Promotions and Designs 09/30/2009 18.5% Becky's B & L Inc.
161 NAP NAP NAP NAP NAP
162 18.4% Brett's Comic Pile and Velocity Comics 05/31/2011 14.1% NAP
164 28.6% New Paradigm Capital Management, Inc 08/01/2009 25.7% Capital Realty Services
165 NAP NAP NAP NAP NAP
166 NAP NAP NAP NAP NAP
167 100.0% NAP NAP NAP NAP
168 23.7% NAP NAP NAP NAP
169 NAP NAP NAP NAP NAP
170 NAP NAP NAP NAP NAP
171 18.2% Bayou Properties Office 10/31/2011 11.1% NAP
172 NAP NAP NAP NAP NAP
173 NAP NAP NAP NAP NAP
174 NAP NAP NAP NAP NAP
Totals and Weighted Averages:
Mortgage Lease Expir- Insurance Tax Escrow Capital Expenditure TI/LC Escrow Other Escrow
Loan No. a tion Date % NSF Escrow in Place in Place(14) Escrow in Place(15) in Place(16) Description(17)
-------- ------------ ----- --------------- ------------ ------------------- ------------ --------------------------
27 01/14/2010 4.6% Yes Yes Yes Yes NAP
31 NAP NAP No No No No Collateral Security Agreement
39 NAP NAP No No No No NAP
41 NAP NAP No No No No NAP
47 NAP NAP No Yes No No NAP
48 NAP NAP No No No No NAP
50 NAP NAP Yes Yes No No Collateral Security
Agreement; Operating
Reserve; Debt Service
Reserve
53 NAP NAP No No No No NAP
63 04/30/2007 7.2% Yes Yes Yes Yes Earnout Holdback
66 NAP NAP Yes Yes No No Collateral Security Agreement
75 NAP NAP No No No No NAP
76 NAP NAP No No No No NAP
81 NAP NAP Yes Yes No No Collateral Security Agreement
83 NAP NAP Yes No No No Collateral Security Agreement
90 NAP NAP No No No No NAP
96 NAP NAP Yes Yes Yes No NAP
102 NAP NAP No No No No NAP
109 NAP NAP Yes Yes No No NAP
111 NAP NAP No Yes No No NAP
113 NAP NAP No No No No NAP
118 NAP NAP No Yes No No NAP
121 10/31/2009 4.4% Yes No No No NAP
122 NAP NAP No Yes No No NAP
123 NAP NAP No No No No Collateral Security Agreement
124 NAP NAP No No No No NAP
125 NAP NAP No No No No NAP
128 NAP NAP No No No No NAP
129 NAP NAP No No No No NAP
131 NAP NAP No Yes No No NAP
133 NAP NAP No No No No NAP
135 NAP NAP Yes Yes Yes No NAP
136 05/31/2011 11.7% Yes Yes Yes Yes NAP
138 NAP NAP No No No No NAP
141 NAP NAP No No No No NAP
142 NAP NAP Yes Yes Yes No NAP
143 NAP NAP No No No No NAP
144 NAP NAP No No No No NAP
145 NAP NAP No No No No NAP
148 NAP NAP No No No No One month rent holdback
150 NAP NAP Yes Yes Yes Yes NAP
153 NAP NAP Yes Yes Yes Yes NAP
154 NAP NAP Yes Yes Yes No NAP
155 NAP NAP No No Yes No NAP
156 NAP NAP No No No No NAP
157 NAP NAP No Yes No No NAP
159 NAP NAP Yes Yes Yes No NAP
160 10/31/2009 18.5% Yes Yes Yes Yes NAP
161 NAP NAP No No No No NAP
162 NAP NAP Yes Yes Yes Yes Earnout Reserve
164 10/31/2011 23.8% No Yes No No NAP
165 NAP NAP No No No No NAP
166 NAP NAP No No No No NAP
167 NAP NAP Yes Yes Yes Yes NAP
168 NAP NAP Yes Yes Yes Yes NAP
169 NAP NAP No Yes No No NAP
170 NAP NAP No No No No NAP
171 NAP NAP Yes Yes Yes No NAP
172 NAP NAP No No No No NAP
173 NAP NAP No No No No NAP
174 NAP NAP No No No No NAP
Totals and Weighted Averages:
Initial Capital Monthly Capital Current Capital
Mortgage Expenditure Expenditure Expenditure
Loan No. Springing Escrow Description(18) Escrow Requirement(19) Escrow Requirement(20) Escrow Balance (21)
-------- -------------------------------------- ---------------------- ---------------------- --------------------
27 NAP $0 $601 $0
31 RE Tax, Insurance, Cap Ex, TI/LC $0 $0 $0
39 RE Tax, Insurance $0 $0 $0
41 RE Tax, Insurance $0 $0 $0
47 Insurance $0 $0 $0
48 RE Tax, Insurance $0 $0 $0
50 NAP $0 $0 $0
53 RE Tax, Insurance $0 $0 $0
63 NAP $0 $734 $0
66 NAP $0 $0 $0
75 RE Tax, Insurance $0 $0 $0
76 RE Tax, Insurance $0 $0 $0
81 NAP $0 $0 $0
83 RE Tax $0 $0 $0
90 RE Tax, Insurance $0 $0 $0
96 TI/LC $0 $833 $833
102 RE Tax $0 $0 $0
109 NAP $0 $0 $0
111 Insurance $0 $0 $0
113 RE Tax, Insurance $0 $0 $0
118 Insurance $0 $0 $0
121 NAP $0 $0 $0
122 Insurance $0 $0 $0
123 RE Tax, Insurance $0 $0 $0
124 RE Tax, Insurance $0 $0 $0
125 RE Tax, Insurance $0 $0 $0
128 RE Tax, Insurance $0 $0 $0
129 RE Tax, Insurance $0 $0 $0
131 Insurance $0 $0 $0
133 RE Tax, Insurance $0 $0 $0
135 NAP $0 $2,099 $6,306
136 NAP $0 $615 $0
138 RE Tax, Insurance $0 $0 $0
141 RE Tax, Insurance $0 $0 $0
142 NAP $0 $1,420 $8,559
143 RE Tax, Insurance, Cap Ex, TI/LC $0 $0 $0
144 RE Tax, Insurance $0 $0 $0
145 RE Tax, Insurance $0 $0 $0
148 RE Tax, Insurance $0 $0 $0
150 NAP $0 $167 $334
153 TI/LC $0 $89 $448
154 NAP $0 $1,609 $4,836
155 NAP $0 $479 $0
156 RE Tax, Insurance $0 $0 $0
157 Insurance $0 $0 $0
159 TI/LC $0 $307 $307
160 NAP $0 $130 $130
161 RE Tax, Insurance $0 $0 $0
162 NAP $0 $100 $0
164 NAP $0 $0 $0
165 RE Tax, Insurance $0 $0 $0
166 RE Tax, Insurance $0 $0 $0
167 NAP $0 $43 $172
168 NAP $0 $183 $0
169 Insurance $0 $0 $0
170 RE Tax, Insurance $0 $0 $0
171 NAP $0 $155 $0
172 RE Tax, Insurance $0 $0 $0
173 RE Tax, Insurance $0 $0 $0
174 RE Tax, Insurance $0 $0 $0
Totals and Weighted Averages:
Mortgage Initial TI/LC Escrow Monthly TI/LC Current TI/LC Environmental Interest
Loan No. Requirement (22) Escrow Requirement(23) Escrow Balance(24) Insurance Accrual Method Seasoning(25)
-------- ------------------- ---------------------- ------------------ ------------- -------------- -------------
27 $275,000 $3,905 $275,000 No Actual/360 0
31 $0 $0 $0 No Actual/360 4
39 $0 $0 $0 No Actual/360 4
41 $0 $0 $0 No Actual/360 4
47 $0 $0 $0 No Actual/360 2
48 $0 $0 $0 No Actual/360 4
50 $0 $0 $0 No Actual/360 2
53 $0 $0 $0 No Actual/360 2
63 $100,000 $2,158 $100,021 No Actual/360 2
66 $0 $0 $0 No Actual/360 2
75 $0 $0 $0 No Actual/360 3
76 $0 $0 $0 No Actual/360 3
81 $0 $0 $0 No Actual/360 2
83 $0 $0 $0 No Actual/360 3
90 $0 $0 $0 No Actual/360 3
96 $0 $0 $0 No Actual/360 3
102 $0 $0 $0 No Actual/360 2
109 $0 $0 $0 No 30/360 4
111 $0 $0 $0 No Actual/360 4
113 $0 $0 $0 No Actual/360 4
118 $0 $0 $0 No Actual/360 4
121 $0 $0 $0 No Actual/360 2
122 $0 $0 $0 No Actual/360 4
123 $0 $0 $0 No Actual/360 2
124 $0 $0 $0 No Actual/360 2
125 $0 $0 $0 No Actual/360 2
128 $0 $0 $0 No Actual/360 3
129 $0 $0 $0 No Actual/360 3
131 $0 $0 $0 No Actual/360 3
133 $0 $0 $0 No Actual/360 4
135 $0 $0 $0 No Actual/360 4
136 $0 $2,048 $0 No Actual/360 1
138 $0 $0 $0 No Actual/360 3
141 $0 $0 $0 No Actual/360 1
142 $0 $0 $0 No Actual/360 7
143 $0 $0 $0 Yes Actual/360 4
144 $0 $0 $0 No Actual/360 4
145 $0 $0 $0 No Actual/360 2
148 $0 $0 $0 No Actual/360 4
150 $0 $303 $606 No Actual/360 3
153 $0 $182 $912 No Actual/360 7
154 $0 $0 $0 No Actual/360 4
155 $0 $0 $0 No Actual/360 2
156 $0 $0 $0 No Actual/360 4
157 $0 $0 $0 No Actual/360 1
159 $0 $0 $0 No Actual/360 3
160 $28,000 $0 $28,106 No Actual/360 3
161 $0 $0 $0 No Actual/360 4
162 $0 $237 $0 No Actual/360 2
164 $0 $0 $0 No Actual/360 4
165 $0 $0 $0 No Actual/360 2
166 $0 $0 $0 No Actual/360 3
167 $0 $428 $5,166 No Actual/360 5
168 $0 $137 $0 No Actual/360 1
169 $0 $0 $0 No Actual/360 3
170 $0 $0 $0 No Actual/360 4
171 $0 $0 $0 No Actual/360 2
172 $0 $0 $0 No Actual/360 2
173 $0 $0 $0 No Actual/360 2
174 $0 $0 $0 No Actual/360 3
Totals and Weighted Averages:
Prepayment Code(25)
---------------------------------------------------------------------
Mortgage Administrative Mortgage
Loan No. LO DEF DEF/YM1 YM3 YM1 3% 2% 1% Open YM Formula(27) Cost Rate (28) Loan No.
-------- -- --- ------- --- --- - - - ---- -------------- ------------- --------
27 24 92 4 8.085 27
31 28 93 4 8.085 31
39 28 88 4 8.085 39
41 102 14 4 8.085 41
47 84 32 4 H 8.085 47
48 84 32 4 H 8.085 48
50 102 14 4 8.085 50
53 84 32 4 H 8.085 53
63 26 90 4 8.085 63
66 144 12 12 8 4 8.085 66
75 84 32 4 H 8.085 75
76 84 32 4 H 8.085 76
81 102 14 4 8.085 81
83 144 12 12 8 4 8.085 83
90 84 32 4 H 8.085 90
96 48 68 4 H 8.085 96
102 26 90 4 8.085 102
109 28 88 4 8.085 109
111 180 56 4 H 8.085 111
113 84 32 4 H 8.085 113
118 102 14 4 8.085 118
121 48 68 4 H 8.085 121
122 102 14 4 8.085 122
123 84 32 4 H 8.085 123
124 84 32 4 H 8.085 124
125 48 68 4 H 8.085 125
128 84 32 4 H 8.085 128
129 102 14 4 8.085 129
131 102 14 4 8.085 131
133 28 208 4 8.085 133
135 40 76 4 H 8.085 135
136 25 91 4 8.085 136
138 84 32 4 H 8.085 138
141 25 91 4 8.085 141
142 43 73 4 H 8.085 142
143 28 88 4 8.085 143
144 48 68 4 H 8.085 144
145 96 80 4 H 8.085 145
148 28 88 4 8.085 148
150 27 89 4 8.085 150
153 31 85 4 8.085 153
154 40 76 4 H 8.085 154
155 26 90 4 8.085 155
156 84 32 4 H 8.085 156
157 102 14 4 8.085 157
159 48 68 4 H 8.085 159
160 27 89 4 8.085 160
161 48 68 4 H 8.085 161
162 26 90 4 8.085 162
164 28 88 4 8.085 164
165 102 14 4 8.085 165
166 84 32 4 H 8.085 166
167 46 70 4 H 8.085 167
168 25 91 4 8.085 168
169 102 14 4 8.085 169
170 48 68 4 H 8.085 170
171 26 90 4 8.085 171
172 48 68 4 H 8.085 172
173 48 68 4 H 8.085 173
174 120 56 4 H 8.085 174
Totals and Weighted Averages:
SCHEDULE IV
SUNTRUST LOAN SCHEDULE
[see attached]
DISCLAIMER
Prospective investors are advised to read carefully, and should rely solely on,
the Prospectus Supplement dated March 22, 2007, and accompanying Prospectus
dated February 6, 2007 (together, the "Prospectus") relating to the Certificates
referred to below in making their investment decision.
This diskette accompanies and is a part of the Prospectus relating to the
Commercial Mortgage Pass-Through Certificates Series 2007-IQ13 (the
"Certificates"). The information set forth on this diskette is an electronic
copy of the information set forth in Appendix II labeled "Certain
Characteristics of the Mortgage Loans" in the Prospectus. This diskette should
be reviewed only in conjunction with the entire Prospectus. This diskette does
not contain all relevant information relating to the Certificates. Such
information is described elsewhere in the Prospectus.
Methodologies used in deriving certain information contained on this diskette
are more fully described elsewhere in the Prospectus.
The information on this diskette should not be viewed as projections, forecasts,
predictions or opinions with respect to value.
IMPORTANT NOTICE RELATING TO AUTOMATICALLY GENERATED EMAIL DISCLAIMERS Any
legends, disclaimers or other notices that may appear at the bottom of, or
attached to, the email communication to which this material may have been
attached are not applicable to these materials and should be disregarded. Such
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APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
Mortgage Mortgage
Loan No. CMSA Loan No. CMSA Property No. Loan Seller(1) Property Name(2) Loan Group
-------- ------------- ----------------- -------------- ---------------------------------- ----------
18 18 18-001 SunTrust Copper Mill 2
21 21 21-001 SunTrust Xxxxxxxxxxxx Village 2
22 22 22-001 SunTrust Xxxxxxxx Corner 1
23 23 23-001 SunTrust Candleton Village 2
32 32 32-001 SunTrust Hilton Garden Inn Kennesaw 1
35 35 35-001 SunTrust OK State Housing 2
42 42 42-001 SunTrust Ice Xxxxx Xxxxx 0
00 00 00-000 XxxXxxxx Garners Crossing 2
45 45 45-001 SunTrust Brunswick Associates 1
56 56 56-001 SunTrust Hampton Inn Chesapeake 1
64 64 64-001 SunTrust Shoppes at Xxxxxx'x Landing 1
65 65 65-001 SunTrust Xxxxxxxx Xxxxx 0
00 00 00-000 XxxXxxxx Xxxxxxx Xxxx 2
89 89 89-001 SunTrust Cotton Exchange Building 1
92 92 92-001 SunTrust Hampton Center East 1
97 97 97-001 SunTrust Walgreen's Kennesaw 1
98 98 98-001 SunTrust Walgreen's Cudahy 1
100 100 100-001 SunTrust Ameriguard Self Storage 1
108 108 000-000 XxxXxxxx Xxx Xxxx Station 1
110 110 110-001 SunTrust Battlefield Freedom 1
120 120 120-001 SunTrust Imperial Corners 1
126 126 126-001 SunTrust Holiday MHP 2
130 130 130-001 SunTrust Walgreens Tucson 1
132 132 132-001 SunTrust Chapel Hill Medical 1
134 134 134-001 SunTrust Xxxxxxxx Mill 1
137 137 137-001 SunTrust Lion's Court 1
139 139 139-001 SunTrust Lakeland Commons 1
140 140 140-001 SunTrust Lakeland Hills Plaza 1
146 146 146-001 SunTrust Xxxxxxxxxx Xxxxx Xxxxx 0
147 147 147-001 SunTrust Jared Jewelers 1
149 149 149-001 SunTrust Highland Station 1
151 151 000-000 XxxXxxxx Xxx Xxxxx 0
152 152 152-001 SunTrust Rosedale Village 1
158 158 158-001 SunTrust Scottsdale 1
163 163 163-001 SunTrust Shoppes @ Highland 1
Totals and Weighted Averages:
Mortgage Cross-Collater- Cut-Off Date Post IO Period Cut-Off Balloon
Loan No. alization(2) Original Balance Balance(3) NOI DSCR(4) NCF DSCR(4) NCF DSCR(4) Date LTV(4) LTV(4)
-------- --------------- ---------------- ------------ ----------- ----------- -------------- ----------- -------
18 No $20,000,000 $20,000,000 1.26 1.21 NAP 80.0% 67.5%
21 No $17,440,000 $17,440,000 1.20 1.15 NAP 77.4% 65.3%
22 No $17,040,000 $17,040,000 1.15 1.10 NAP 81.6% 67.9%
23 No $17,000,000 $16,976,747 1.26 1.20 NAP 77.7% 65.6%
32 No $13,000,000 $12,970,194 1.67 1.50 NAP 74.2% 62.5%
35 No $11,800,000 $11,764,073 1.19 1.15 NAP 82.3% 70.0%
42 No $9,200,000 $9,200,000 1.14 1.10 NAP 71.9% 60.6%
44 No $8,925,000 $8,925,000 1.55 1.44 1.19 70.9% 62.3%
45 No $8,800,000 $8,780,506 1.50 1.34 NAP 71.4% 63.3%
56 No $7,287,400 $7,287,400 2.10 1.87 NAP 67.5% 56.8%
64 Yes $3,574,000 $3,566,300 1.46 1.38 NAP 57.2% 48.8%
65 Yes $2,896,000 $2,889,761 1.46 1.38 NAP 57.2% 48.8%
72 No $5,936,400 $5,936,400 1.65 1.52 1.26 79.2% 69.8%
89 No $4,200,000 $4,200,000 2.23 1.82 1.50 59.0% 55.0%
92 No $4,100,000 $4,094,260 1.52 1.25 NAP 67.1% 56.3%
97 No $3,700,000 $3,694,918 1.18 1.12 NAP 76.2% 64.2%
98 No $3,650,000 $3,644,944 1.16 1.14 NAP 73.5% 61.8%
100 No $3,600,000 $3,595,024 1.27 1.20 NAP 69.0% 58.0%
108 No $3,300,000 $3,292,832 1.29 1.20 NAP 78.4% 66.7%
110 No $3,225,000 $3,220,770 1.42 1.34 NAP 63.2% 53.9%
120 No $2,720,000 $2,720,000 1.32 1.26 NAP 78.4% 66.1%
126 No $2,400,000 $2,400,000 1.49 1.41 1.21 77.4% 74.9%
130 No $2,200,000 $2,196,906 1.72 1.64 NAP 47.8% 40.0%
132 No $2,000,000 $1,995,634 1.45 1.32 NAP 66.0% 56.1%
134 No $1,925,000 $1,925,000 1.26 1.20 NAP 80.2% 68.3%
137 No $1,830,000 $1,830,000 1.30 1.23 NAP 70.4% 60.3%
139 Yes $1,017,000 $1,015,638 1.36 1.25 NAP 71.2% 60.4%
140 Yes $708,000 $707,051 1.36 1.25 NAP 71.2% 60.4%
146 No $1,560,000 $1,556,584 1.39 1.25 NAP 70.8% 60.1%
147 No $1,505,000 $1,505,000 1.38 1.31 NAP 80.1% 68.9%
149 No $1,465,000 $1,461,792 1.34 1.24 NAP 72.2% 61.3%
151 No $1,455,000 $1,453,051 1.39 1.25 NAP 63.2% 53.6%
152 No $1,450,000 $1,448,135 1.37 1.24 NAP 63.0% 54.1%
158 No $1,280,000 $1,277,197 1.37 1.25 NAP 73.0% 62.0%
163 No $1,043,000 $1,041,603 1.43 1.25 NAP 68.1% 57.8%
Totals and Weighted Averages: $193,231,800 $193,052,720 1.42x 1.31x 1.29x 71.1% 60.8%
Mortgage
Loan No. Street Address City State Zip Code Property Type
-------- --------------------------------------------------------------------- --------------- ----- -------- -------------
18 0000 Xxxxxxxxxxx Xxxxx Xxxx Xxxxx XX 00000 Multifamily
21 0000 Xxx Xxxx Xxxx Xxxxxx XX 00000 Multifamily
22 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 Retail
23 000 Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Multifamily
32 000 Xxxx Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000 Hospitality
35 000 - 000 X Xxxxx Xxxxx; 0000 - 0000 X Xxx; 1624 - 0000 X Xxxxx
Xxxxx; 000 - 000 X Xxxxx Xxxxxx; 125 - 000 X Xxxxxxx Xxxxx;
000 - 000 X Xxxxxxx Xxxxx; 000 - 000 X Xxxxxxxx Xxxxx; 000 -
000 X Xxxxxx Xxxxx; 000 - 000 X Xxxxx Xxxxx Xxxxx; 0000 X. Xxxxxxxx;
2421 & 0000 X. Xxxxxxxx #0-#00 Xxxxxxxxxx XX 00000 Multifamily
42 000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 Multifamily
44 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000 Multifamily
45 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000 Xxxxxx
00 000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Hospitality
64 0000-0000 Xxxxxxx Xxxxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000 Retail
65 0000 XX Xxxxxxx 000 Xxxxx XX 00000 Retail
72 0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Multifamily
89 00 Xxxxx Xxxxxx - Xxxx 0 Xxxxxxx XX 00000 Office
92 9201-9251 Hampton Overlook Xxxxxxx Xxxxxxx XX 00000 Industrial
97 0000 Xxxxx Xxxxx Xxxx Xxxxxxxx XX 00000 Retail
98 0000 X. Xxxxxxx Xxxxxx Xxxxxx XX 00000 Retail
100 0000 Xxxxxx Xxxx Xxxxxx Xxxxx XX 00000 Self Storage
108 0000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Retail
110 0000 Xxx'x Xxxxxx Xxxxxxxxxx XX 00000 Retail
120 0000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxx XX 00000 Retail
126 000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000 Manufactured
Housing
Community
130 0000 Xxxxx Xxxxxx Xxxxxx XX 00000 Retail
132 000 Xxxxxx Xxxxxx Xxxx Xx. Xxxxxxxxx Xxxxxx Xxxx XX 00000 Office
134 0000 Xxxxxxxx Xxxx Xxxx Xxxxxx XX 00000 Retail
137 0000-0000 X. Xxxxxxx Xxxx Xxxxxxxxx XX 00000 Retail
139 0000 X. Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 Retail
140 0000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000 Retail
146 0000-0000 Xxxx Xxxx Xxxxxxxx XX 00000 Retail
147 000 Xxxx Xxxx Xxxx Xxxxx Xxxxxxxx XX 00000 Retail
149 0000 Xxxxxx Xxxx Xxxxxxxx XX 00000 Retail
151 0000 XX Xxxxxxx 00 Xxxxx Xxxxxxxx XX 00000 Retail
152 0000-0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx XX 00000 Retail
158 0000 X. Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 Retail
163 0000-0000 Xxxxxxx 00 Xxxxxxx XX 00000 Retail
Totals and Weighted Averages:
Mortgage Percent
Loan No. Property Sub-Type Units/SF Year Built Year Renovated Leased(5)
-------- ------------------------------ -------- ----------------------------------------- -------------- ---------
18 Garden 352 2005 NAP 85.5%
21 Garden 278 2006 NAP 91.7%
22 Anchored 67,150 1990 2005 100.0%
23 Garden 314 2005 / 2006 NAP 93.0%
32 Limited Service 114 2005 NAP 72.1%
35 Student Housing 112 2002 / 2005-2006 NAP 100.0%
00 Xxx Xxxx 98 1926 / 1999 / 2000 NAP 92.9%
44 Garden 210 1998 NAP 85.7%
45 Suburban 74,629 2001 NAP 100.0%
56 Limited Service 119 1989 NAP 71.7%
64 Unanchored 29,600 2005 NAP 86.5%
65 Shadow Anchored 17,400 2005 NAP 79.3%
72 Garden 169 1968 / 1983 NAP 97.6%
89 Urban 68,437 1924 1960 /1976/198 99.0%
92 Warehouse 73,734 1989 NAP 100.0%
97 Free Standing 13,600 2004 NAP 100.0%
98 Free Standing 14,820 2005 NAP 100.0%
100 Self Storage 800 1998 / 2003 NAP 67.0%
108 Unanchored 16,100 2006 NAP 100.0%
110 Unanchored 10,011 1993 2006 100.0%
120 Unanchored 15,404 2001 NAP 100.0%
126 Manufactured Housing Community 267 1971 NAP 83.9%
130 Free Standing 13,905 1997 NAP 100.0%
132 Medical 11,515 1999 NAP 100.0%
134 Unanchored 12,800 2006 NAP 100.0%
137 Shadow Anchored 10,563 2002 NAP 100.0%
139 Unanchored 12,746 1985 NAP 100.0%
140 Unanchored 7,529 1988 NAP 100.0%
146 Unanchored 17,000 2001 NAP 85.9%
147 Shadow Anchored 5,996 2006 NAP 100.0%
149 Unanchored 16,666 1986 NAP 93.6%
151 Unanchored 22,700 1984 NAP 94.7%
152 Unanchored 20,365 1986 2001 100.0%
158 Unanchored 13,574 1983 NAP 100.0%
163 Unanchored 24,961 1982 NAP 93.4%
Totals and Weighted Averages:
First
Payment
Mortgage Percent Leased Cut-Off Date Balance Date
Loan No. as of Date(5) Security Type(6) Lien Position Related Borrower List per Unit or SF Note Date (P&I)(7)
-------- -------------- ---------------- ------------- ---------------------- -------------------- ---------- ----------
18 01/28/2007 Fee First 18, 21, 23 $56,818 03/07/2007 05/01/2007
21 02/18/2007 Fee First 18, 21, 23 $62,734 03/05/2007 05/01/2007
22 02/01/2007 Fee First $254 03/15/2007 05/01/2007
23 01/25/2007 Fee First 18, 21, 23 $54,066 01/29/2007 03/01/2007
32 10/31/2006 Fee First $113,774 12/29/2006 02/01/2007
35 09/12/2006 Fee First $105,036 11/30/2006 01/01/2007
42 12/27/2006 Fee First $93,878 02/21/2007 04/01/2007
44 11/25/2006 Fee First $42,500 01/31/2007 03/01/2009
45 11/17/2006 Fee / Leasehold First $118 12/20/2006 02/01/2007
56 10/31/2006 Fee First $61,239 02/13/2007 04/01/2007
64 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $137 12/28/2006 02/01/2007
65 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $137 12/28/2006 02/01/2007
72 01/09/2007 Fee First $35,127 02/09/2007 04/01/2009
89 11/30/2006 Fee First $61 12/20/2006 02/01/2012
92 12/15/2006 Fee First $56 01/29/2007 03/01/2007
97 11/29/2006 Fee First 97, 98 $272 01/24/2007 03/01/2007
98 12/04/2006 Fee First 97, 98 $246 01/25/2007 03/01/2007
100 11/01/2006 Fee First $4,494 01/11/2007 03/01/2007
108 12/30/2006 Fee First $205 12/21/2006 02/01/2007
110 12/15/2006 Fee First $322 01/25/2007 03/01/2007
120 02/22/2007 Fee First $177 03/02/2007 05/01/2007
126 11/17/2006 Fee First $8,989 12/21/2006 02/01/2009
130 03/01/2007 Fee First $158 01/19/2007 03/01/2007
132 01/27/2007 Fee First $173 12/28/2006 02/01/2007
134 12/28/2006 Fee First $150 02/26/2007 04/01/2007
137 01/12/2007 Fee First $173 02/05/2007 04/01/2007
139 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $85 01/09/2007 03/01/2007
140 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $85 01/09/2007 03/01/2007
146 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $92 12/28/2006 02/01/2007
147 11/28/2006 Leasehold First $251 02/07/2007 04/01/2007
149 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $88 12/28/2006 02/01/2007
151 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $64 01/09/2007 03/01/2007
152 01/23/2007 Fee First $71 01/31/2007 03/01/2007
158 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $94 12/28/2006 02/01/2007
163 12/01/2006 Fee First 64, 65, 139, 140, 146,
149, 151, 158, 163 $42 01/10/2007 03/01/2007
Totals and Weighted Averages:
Mortgage First Payment
Loan No. Date (IO)(7) Maturity Date Due Date Grace Period(8) ARD Loan Lockbox Status Lockbox Type
-------- ------------- ------------- -------- --------------- -------- -------------- --------------------
18 NAP 04/01/2017 1 8 No NAP NAP
21 NAP 04/01/2017 1 8 No NAP NAP
22 NAP 04/01/2017 1 8 No In-Place Hard
23 NAP 02/01/2017 1 8 No NAP NAP
32 NAP 01/01/2017 1 5 No NAP NAP
35 NAP 12/01/2016 1 5 No NAP NAP
42 NAP 03/01/2017 1 5 No NAP NAP
44 03/01/2007 02/01/2017 1 5 No NAP NAP
45 NAP 01/01/2015 1 5 No NAP NAP
56 NAP 03/01/2017 1 5 No NAP NAP
64 NAP 01/01/2017 1 5 No NAP NAP
65 NAP 01/01/2017 1 5 No NAP NAP
72 04/01/2007 03/01/2017 1 5 No NAP NAP
89 02/01/2007 01/01/2017 1 5 No NAP NAP
92 NAP 02/01/2017 1 5 No NAP NAP
97 NAP 02/01/2017 1 5 No NAP NAP
98 NAP 02/01/2017 1 5 No NAP NAP
100 NAP 02/01/2017 1 5 No NAP NAP
108 NAP 01/01/2017 1 10 No NAP NAP
110 NAP 02/01/2017 1 5 No NAP NAP
120 NAP 04/01/2017 1 5 No NAP NAP
126 02/01/2007 01/01/2012 1 5 No NAP NAP
130 NAP 02/01/2017 1 5 No NAP NAP
132 NAP 01/01/2017 1 5 No NAP NAP
134 NAP 03/01/2017 1 5 No NAP NAP
137 NAP 03/01/2017 1 5 No NAP NAP
139 NAP 02/01/2017 1 5 No NAP NAP
140 NAP 02/01/2017 1 5 No NAP NAP
146 NAP 01/01/2017 1 5 No NAP NAP
147 NAP 03/01/2017 1 5 No NAP NAP
149 NAP 01/01/2017 1 5 No NAP NAP
151 NAP 02/01/2017 1 5 No NAP NAP
152 NAP 02/01/2017 1 5 No NAP NAP
158 NAP 01/01/2017 1 5 No NAP NAP
163 NAP 02/01/2017 1 5 No NAP NAP
Totals and Weighted Averages:
Mortgage Original Remaining Term Original Remaining Monthly
Loan No. Term to Maturity to Maturity Amort. Term(9) Amort. Term Mortgage Rate Monthly Payment (P&I) Payment (IO)
-------- ---------------- -------------- -------------- ----------- ------------- --------------------- -------------
18 120 120 360 360 5.750% $116,715 NAP
21 120 120 360 360 5.750% $101,775 NAP
22 120 120 360 360 5.670% $98,577 NAP
23 120 119 360 359 5.720% $98,884 NAP
32 120 118 360 358 5.640% $74,958 NAP
35 120 117 360 357 5.920% $70,141 NAP
42 120 120 360 360 5.730% $53,572 NAP
44 120 119 360 360 5.580% $51,124 $42,078
45 96 94 360 358 5.850% $51,915 NAP
56 120 120 360 360 5.680% $42,204 NAP
64 120 118 360 358 6.020% $21,474 NAP
65 120 118 360 358 6.020% $17,400 NAP
72 120 120 360 360 5.660% $34,305 $28,389
89 120 118 360 360 5.610% $24,138 $19,908
92 120 119 360 359 5.500% $23,279 NAP
97 120 119 360 359 5.680% $21,428 NAP
98 120 119 360 359 5.600% $20,954 NAP
100 120 119 360 359 5.620% $20,712 NAP
108 120 118 360 358 5.970% $19,722 NAP
110 120 119 360 359 6.130% $19,606 NAP
120 120 120 360 360 5.740% $15,856 NAP
126 60 58 360 360 6.340% $14,918 $12,856
130 120 119 360 359 5.460% $12,436 NAP
132 120 118 360 358 5.940% $11,914 NAP
134 120 120 360 360 6.060% $11,616 NAP
137 120 120 360 360 6.250% $11,268 NAP
139 120 119 360 359 5.920% $6,045 NAP
140 120 119 360 359 5.920% $4,208 NAP
146 120 118 360 358 5.920% $9,273 NAP
147 120 120 360 360 6.410% $9,424 NAP
149 120 118 360 358 5.920% $8,708 NAP
151 120 119 360 359 5.920% $8,649 NAP
152 120 119 360 359 6.330% $9,003 NAP
158 120 118 360 358 5.920% $7,609 NAP
163 120 119 360 359 5.920% $6,200 NAP
Totals and Weighted
Averages: 118 117 360 359 5.859%
Mortgage Third Most Third Most Recent Second Most Second Most Recent
Loan No. Recent NOI(10) NOI End Date Recent NOI NOI End Date Most Recent NOI Most Recent NOI End Date
-------- -------------- ----------------- ----------- ------------------ --------------- ------------------------
18 NAP NAP NAP NAP NAP NAP
21 NAP NAP NAP NAP NAP NAP
22 NAP NAP $915,631 12/31/2005 $1,436,549 12/31/2006
23 NAP NAP NAP NAP $1,595,512 12/31/2006
32 NAP NAP NAP NAP $1,705,027 10/31/2006 Xxx.
35 NAP NAP $589,693 12/31/2005 $975,314 2006 Xxx.
42 $583,719 12/31/2004 $553,151 12/31/2005 $704,670 12/31/2006
44 NAP NAP NAP NAP $747,844 12/31/2006
45 $1,107,918 12/31/2004 $998,957 12/31/2005 $1,022,071 T-12 (9/30/2006)
56 $1,092,486 12/31/2004 $881,562 12/31/2005 $1,121,548 12/31/2006
64 NAP NAP NAP NAP $272,931 12/31/2006
65 NAP NAP NAP NAP $135,295 12/31/2006
72 $387,522 12/31/2004 $556,508 12/31/2005 $610,526 12/31/2006
89 $668,362 12/31/2005 $626,354 T-3 (03/31/06) $620,290 10/23/2006 Xxx.
92 $419,505 12/31/2004 $372,977 12/31/2005 $472,737 12/31/2006
97 NAP NAP $273,377 12/31/2005 $304,088 12/31/2006
98 NAP NAP NAP NAP $300,000 12/31/2006
100 $351,241 12/31/2004 $354,234 12/31/2005 $371,934 T-12 (9/30/2006)
108 NAP NAP NAP NAP $246,487 12/31/2006
110 NAP NAP NAP NAP $360,458 12/31/2006
120 NAP NAP $255,147 12/31/2005 $258,802 12/31/2006
126 $129,021 12/31/2004 $150,730 12/31/2005 $156,559 T-12 (10/31/06)
130 $323,395 12/31/2004 $325,261 12/31/2005 $329,494 12/31/2006
132 $212,802 12/31/2004 $227,917 12/31/2005 $281,703 12/31/2006
134 NAP NAP NAP NAP NAP NAP
137 $202,304 12/31/2004 $220,046 12/31/2005 $207,084 12/31/2006
139 $120,654 12/31/2004 $122,255 12/31/2005 $122,436 12/31/2006
140 $51,551 12/31/2004 $74,248 12/31/2005 $88,287 12/31/2006
146 $147,528 12/31/2004 $139,709 12/31/2005 $153,313 12/31/2006
147 NAP NAP NAP NAP NAP NAP
149 $160,167 12/31/2004 $167,887 12/31/2005 $167,948 12/31/2006
151 $156,480 12/31/2004 $175,733 12/31/2005 $183,987 12/31/2006
152 NAP NAP $153,163 12/31/2004 $139,713 12/31/2005
158 $122,127 12/31/2004 $141,368 12/31/2005 $150,337 12/31/2006
163 $141,822 12/31/2004 $120,675 12/31/2005 $124,218 2006 Xxx.
Totals and Weighted Averages:
Mortgage
Loan No. Underwritten EGI Underwritten Expenses Underwritable NOI Underwritten Reserves Underwritable Cash Flow
-------- ---------------- --------------------- ----------------- --------------------- -----------------------
18 $2,688,949 $928,970 $1,759,978 $70,400 $1,689,578
21 $2,234,830 $774,294 $1,460,536 $55,600 $1,404,936
22 $1,687,047 $332,578 $1,354,469 $52,330 $1,302,138
23 $2,500,219 $1,008,517 $1,491,702 $62,800 $1,428,902
32 $2,749,359 $2,447,068 $1,501,543 $151,870 $1,349,673
35 $1,436,365 $434,085 $1,002,279 $34,710 $967,569
42 $1,157,454 $424,023 $733,431 $24,500 $708,931
44 $1,451,406 $667,056 $784,350 $57,330 $727,020
45 $1,505,562 $568,936 $936,627 $101,204 $835,423
56 $2,155,321 $1,929,560 $1,062,852 $115,093 $947,759
64 $548,852 $182,674 $380,276 $24,579 $363,997
65 $415,343 $112,226 $303,117 $21,803 $281,314
72 $1,031,962 $470,861 $561,101 $42,588 $518,513
89 $1,180,369 $647,774 $532,594 $97,926 $434,668
92 $582,277 $159,049 $423,227 $74,305 $348,922
97 $304,532 $9,893 $304,415 $5,440 $289,199
98 $300,700 $9,021 $291,679 $5,928 $285,751
100 $483,866 $168,733 $315,134 $17,926 $297,208
108 $397,862 $93,221 $304,640 $21,105 $283,536
110 $421,232 $86,508 $334,724 $19,041 $315,682
120 $324,649 $72,808 $251,841 $12,032 $239,809
126 $504,791 $274,376 $230,415 $13,350 $217,064
130 $265,036 $7,951 $257,085 $13,010 $244,075
132 $261,632 $53,751 $207,881 $18,522 $189,359
134 $218,879 $43,074 $175,805 $8,244 $167,561
137 $234,651 $59,486 $175,165 $9,199 $165,966
139 $161,946 $63,844 $98,101 $7,409 $90,692
140 $107,443 $38,099 $69,345 $6,212 $63,133
146 $226,462 $72,186 $154,275 $14,719 $139,556
147 $160,894 $4,827 $156,067 $8,118 $147,949
149 $203,759 $64,240 $139,519 $10,153 $129,366
151 $233,540 $89,671 $143,869 $14,157 $129,712
152 $224,627 $76,585 $148,041 $14,361 $133,681
158 $183,574 $58,246 $125,327 $10,886 $114,441
163 $203,021 $96,384 $106,637 $13,624 $93,013
Totals and Weighted Averages:
Cooperative Loans
------------------------------------------
Mortgage Unsold
Loan No. Balloon Balance Current Value(11) Source of Value Valuation Date Rental Value(12) LTV as Rental Percent
-------- --------------- ----------------- --------------- -------------- ---------------- ------------- -------
18 $16,872,375 $25,000,000 Appraisal 09/21/2006 NAP NAP NAP
21 $14,712,711 $22,525,000 Appraisal 09/19/2006 NAP NAP NAP
22 $14,163,996 $20,875,000 Appraisal 01/22/2007 NAP NAP NAP
23 $14,323,837 $21,850,000 Appraisal 09/21/2006 NAP NAP NAP
32 $10,928,247 $17,475,000 Appraisal 11/20/2006 NAP NAP NAP
35 $10,005,310 $14,300,000 Appraisal 10/02/2006 NAP NAP NAP
42 $7,761,086 $12,800,000 Appraisal 12/29/2006 NAP NAP NAP
44 $7,845,046 $12,590,000 Appraisal 11/30/2006 NAP NAP NAP
45 $7,784,495 $12,300,000 Appraisal 11/17/2006 NAP NAP NAP
56 $6,138,340 $10,800,000 Appraisal 11/07/2006 NAP NAP NAP
64 $3,038,471 $5,900,000 Appraisal 10/23/2006 NAP NAP NAP
65 $2,462,102 $5,380,000 Appraisal 01/18/2007 NAP NAP NAP
72 $5,231,841 $7,500,000 Appraisal 01/12/2007 NAP NAP NAP
89 $3,913,752 $7,120,000 Appraisal 09/22/2006 NAP NAP NAP
92 $3,431,611 $6,100,000 Appraisal 01/02/2007 NAP NAP NAP
97 $3,113,799 $4,850,000 Appraisal 12/26/2006 NAP NAP NAP
98 $3,064,304 $4,960,000 Appraisal 12/21/2006 NAP NAP NAP
100 $3,024,160 $5,210,000 Appraisal 10/12/2006 NAP NAP NAP
108 $2,801,443 $4,200,000 Appraisal 12/06/2006 NAP NAP NAP
110 $2,750,183 $5,100,000 Appraisal 12/20/2006 NAP NAP NAP
120 $2,293,955 $3,470,000 Appraisal 01/08/2007 NAP NAP NAP
126 $2,320,538 $3,100,000 Appraisal 11/08/2006 NAP NAP NAP
130 $1,839,090 $4,600,000 Appraisal 12/15/2006 NAP NAP NAP
132 $1,696,354 $3,025,000 Appraisal 12/12/2006 NAP NAP NAP
134 $1,639,883 $2,400,000 Appraisal 12/19/2006 NAP NAP NAP
137 $1,567,520 $2,600,000 Appraisal 12/11/2006 NAP NAP NAP
139 $861,999 $1,500,000 Appraisal 10/24/2006 NAP NAP NAP
140 $600,094 $920,000 Appraisal 10/19/2006 NAP NAP NAP
146 $1,322,380 $2,200,000 Appraisal 10/19/2006 NAP NAP NAP
147 $1,294,990 $1,880,000 Appraisal 12/07/2006 NAP NAP NAP
149 $1,241,851 $2,025,000 Appraisal 12/04/2006 NAP NAP NAP
151 $1,233,243 $2,300,000 Appraisal 10/19/2006 NAP NAP NAP
152 $1,243,557 $2,300,000 Appraisal 12/05/2006 NAP NAP NAP
158 $1,085,030 $1,750,000 Appraisal 10/24/2006 NAP NAP NAP
163 $884,036 $1,530,000 Appraisal 11/23/2006 NAP NAP NAP
Totals and Weighted Averages:
Cooperative Loans
----------------------------------------------------------------
Mortgage Sponsor/ Lease
Loan No. Sponsor Units Investor Units Coop Units Investor Carry Largest Tenant(13) Expiration Date
-------- ------------- -------------- ---------- ------------------- --------------------------------- ----------------
18 NAP NAP NAP NAP NAP NAP
21 NAP NAP NAP NAP NAP NAP
22 NAP NAP NAP NAP Petco 06/30/2013
23 NAP NAP NAP NAP NAP NAP
32 NAP NAP NAP NAP NAP NAP
35 NAP NAP NAP NAP NAP NAP
42 NAP NAP NAP NAP NAP NAP
44 NAP NAP NAP NAP NAP NAP
45 NAP NAP NAP NAP Mid Coast Hospital 10/31/2016
56 NAP NAP NAP NAP NAP NAP
64 NAP NAP NAP NAP Mattress & Sleep Mart 11/30/2010
65 NAP NAP NAP NAP Deem's Kitchen and Bath 03/31/2012
72 NAP NAP NAP NAP NAP NAP
89 NAP NAP NAP NAP A-Macquisition, Inc. 04/30/2016
92 NAP NAP NAP NAP Royal Glass Company 08/31/2007
97 NAP NAP NAP NAP Walgreens 07/31/2029
98 NAP NAP NAP NAP Walgreens 12/31/2030
100 NAP NAP NAP NAP NAP NAP
108 NAP NAP NAP NAP LA Difference Market 08/15/2011
110 NAP NAP NAP NAP International Buffet, LLC 06/30/2016
120 NAP NAP NAP NAP Serina (B.D. Tacos) 01/01/2008
126 NAP NAP NAP NAP NAP NAP
130 NAP NAP NAP NAP Walgreens 10/15/2028
132 NAP NAP NAP NAP Chapel Hill Internal Medicine 12/31/2018
134 NAP NAP NAP NAP X'Xxxxxx Automotive, Inc. 01/01/2022
137 NAP NAP NAP NAP Allstate Insurance Co. 09/30/2007
139 NAP NAP NAP NAP Alphagraphics Inc. 08/31/2011
140 NAP NAP NAP NAP Odyssey 08/31/2009
146 NAP NAP NAP NAP Fiddlesticks Restaurant 10/01/2010
147 NAP NAP NAP NAP Jared Jewelers 06/22/2026
149 NAP NAP NAP NAP Von Schmeeling's Martial Arts 07/31/2009
151 NAP NAP NAP NAP The Early Years CDC, Inc. 10/31/2008
152 NAP NAP NAP NAP Family Dollar 12/01/2007
158 NAP NAP NAP NAP Polk County Farm Bureau 08/31/2010
163 NAP NAP NAP NAP Nu - Hope of Highlands, Inc. 12/31/2010
Totals and Weighted Averages:
Mortgage Lease
Loan No. % NSF Second Largest Tenant Expiration Date % NSF Third Largest Tenant
-------- ------ ----------------------------------------- --------------- ------ ----------------------------------
18 NAP NAP NAP NAP NAP
21 NAP NAP NAP NAP NAP
22 27.6% Xxx Xxxxxx Loft #1481 01/31/2016 8.9% Bonefish Grill #0804
23 NAP NAP NAP NAP NAP
32 NAP NAP NAP NAP NAP
35 NAP NAP NAP NAP NAP
42 NAP NAP NAP NAP NAP
44 NAP NAP NAP NAP NAP
45 67.2% Maine Ctr for Cancer Medicine 10/31/2016 7.3% Mid Coast Cardiology
56 NAP NAP NAP NAP NAP
64 12.2% Leslie's Pool Supplies 11/30/2010 10.1% Woody's BBQ
65 13.8% China King 01/31/2016 6.9% Quizino's Subs
72 NAP NAP NAP NAP NAP
89 51.2% The Xxxxxxx Firm 09/30/2016 9.4% Bateman, Gibson, and Childers LLC
92 37.1% City Floors, Inc. 12/31/2009 11.9% Alsco
97 100.0% NAP NAP NAP NAP
98 100.0% NAP NAP NAP NAP
100 NAP NAP NAP NAP NAP
108 19.3% Amscot Financial 05/07/2016 17.4% Firehouse Subs
110 74.5% East Coast Communications 06/30/2009 13.0% Indications, LLC
120 25.7% Cafe Kado 08/31/2010 13.5% Flowers in the Park
126 NAP NAP NAP NAP NAP
130 100.0% NAP NAP NAP NAP
132 100.0% NAP NAP NAP NAP
134 53.1% Xxxxxxx Xxxxxxxx Company 05/01/2016 46.9% NAP
137 14.4% Latin Boutique/CICC Enterp. 10/31/2007 14.4% Paul's Carpet & Tile
139 25.1% Citifinancial, Inc. 04/30/2008 19.6% Lakeland Bagels, Inc.
140 24.4% Charlie's Restaurant 12/31/2007 14.5% Quality Hearing Centers of FLA
146 11.8% Xxxxxx Batteries 08/31/2007 10.6% Sorrento's Restaurant & Pizza
147 100.0% NAP NAP NAP NAP
149 13.8% Dr. Janivara Umesh 11/30/2008 12.2% Love N Fluff
151 10.6% Tandum Corporation 10/31/2011 7.9% Dairy Queen
152 38.3% Xxxxxxx'x of Rosedale, Inc. 12/01/2009 23.7% CNS Trading Company
158 12.7% More Space Place 05/31/2013 11.9% Citigroup (Xxxx South)
163 18.0% Florida Dept. of Law Enforce 02/28/2011 15.4% Highlands City Sheriff's Dept.
Totals and Weighted Averages:
Mortgage Lease Expir- Insurance Tax Escrow Capital Expenditure TI/LC Escrow Other Escrow
Loan No. ation Date % NSF Escrow in Place in Place(14) Escrow in Place(15) in Place(16) Description(17)
-------- ------------ ----- --------------- ------------ ------------------- ------------ --------------------------
18 NAP NAP No No Yes No NAP
21 NAP NAP Yes Yes No No NAP
22 10/31/2014 8.2% No No No No NAP
23 NAP NAP Yes Yes Yes No NAP
32 NAP NAP Yes Yes No No NAP
35 NAP NAP Yes Yes Yes No NAP
42 NAP NAP Yes Yes Yes No NAP
44 NAP NAP Yes Yes Yes No NAP
45 10/31/2011 4.8% Yes Yes Yes No NAP
56 NAP NAP Yes Yes Yes No NAP
64 06/30/2020 6.8% Yes Yes Yes No NAP
65 09/30/2015 6.9% Yes Yes Yes No NAP
72 NAP NAP Yes Yes Yes No NAP
89 03/31/2007 7.7% Yes Yes Yes Yes NAP
92 03/31/2011 11.5% Yes Yes Yes Yes Holdback Funds
97 NAP NAP No No No No NAP
98 NAP NAP No No No No NAP
100 NAP NAP Yes Yes Yes No NAP
108 11/15/2011 11.2% Yes Yes No No NAP
110 09/20/2011 12.5% Yes Yes Yes Yes NAP
120 01/31/2010 12.2% Yes Yes Yes Yes NAP
126 NAP NAP Yes Yes Yes No NAP
130 NAP NAP No No No No NAP
132 NAP NAP Yes Yes Yes No NAP
134 NAP NAP Yes Yes Yes No NAP
137 10/31/2007 14.4% Yes Yes Yes Yes NAP
139 12/31/2009 17.0% Yes Yes Yes No NAP
140 01/31/2007 12.2% Yes Yes Yes No NAP
146 03/19/2007 9.4% Yes Yes Yes No NAP
147 NAP NAP No Yes Yes No NAP
149 07/31/2007 12.0% Yes Yes Yes No NAP
151 11/30/2010 7.9% Yes Yes Yes No Holdback Funds
152 01/01/2009 12.0% Yes Yes Yes Yes NAP
158 09/30/2009 10.5% Yes Yes Yes No NAP
163 09/30/2007 11.8% Yes Yes Yes No Holdback Funds
Totals and Weighted Averages:
Initial Capital Monthly Capital Current Capital
Mortgage Expenditure Expenditure Expenditure
Loan No. Springing Escrow Description(18) Escrow Requirement(19) Escrow Requirement(20) Escrow Balance (21)
-------- -------------------------------------- ---------------------- ---------------------- --------------------
18 NAP $0 $4,400 $0
21 Cap Ex $0 $0 $0
22 RE Tax, Insurance, Cap Ex, TI/LC $0 $0 $0
23 NAP $0 $3,925 $0
32 Cap Ex $0 $0 $0
35 NAP $0 $2,850 $8,550
42 NAP $0 $2,042 $0
44 NAP $0 $4,778 $4,778
45 NAP $100,000 $0 $100,000
56 NAP $0 $9,591 $0
64 NAP $0 $370 $740
65 NAP $0 $218 $435
72 NAP $0 $3,549 $0
89 NAP $35,000 $0 $35,000
92 NAP $0 $1,536 $1,536
97 NAP $0 $0 $0
98 NAP $0 $0 $0
100 NAP $0 $1,476 $1,476
108 NAP $0 $0 $0
110 NAP $0 $124 $124
120 NAP $0 $193 $0
126 NAP $0 $1,113 $2,225
130 NAP $0 $0 $0
132 NAP $0 $198 $395
134 TI/LC $0 $160 $0
137 NAP $0 $133 $0
139 NAP $0 $234 $234
140 NAP $0 $94 $94
146 NAP $0 $213 $425
147 Insurance , TI/LC $0 $99 $0
149 NAP $0 $208 $417
151 NAP $0 $322 $322
152 NAP $0 $250 $11,124
158 NAP $0 $170 $339
163 NAP $0 $312 $312
Totals and Weighted Averages:
Mortgage Initial TI/LC Escrow Monthly TI/LC Current TI/LC Environmental Interest
Loan No. Requirement (22) Escrow Requirement(23) Escrow Balance(24) Insurance Accrual Method Seasoning(25)
-------- ------------------- ---------------------- ------------------ ------------- -------------- -------------
18 $0 $0 $0 No Actual/360 0
21 $0 $0 $0 No Actual/360 0
22 $0 $0 $0 No 30/360 0
23 $0 $0 $0 No Actual/360 1
32 $0 $0 $0 No Actual/360 2
35 $0 $0 $0 No Actual/360 3
42 $0 $0 $0 No Actual/360 0
44 $0 $0 $0 No Actual/360 1
45 $0 $0 $0 No Actual/360 2
56 $0 $0 $0 No Actual/360 0
64 $0 $0 $0 No Actual/360 2
65 $0 $0 $0 No Actual/360 2
72 $0 $0 $0 No Actual/360 0
89 $70,000 $4,000 $45,281 No Actual/360 2
92 $0 $2,458 $2,458 No Actual/360 1
97 $0 $0 $0 No Actual/360 1
98 $0 $0 $0 No Actual/360 1
100 $0 $0 $0 No Actual/360 1
108 $0 $0 $0 No Actual/360 2
110 $0 $1,385 $1,385 No Actual/360 1
120 $170,000 $809 $0 No Actual/360 0
126 $0 $0 $0 No Actual/360 2
130 $0 $0 $0 No Actual/360 1
132 $0 $0 $0 No Actual/360 2
134 $0 $0 $0 No Actual/360 0
137 $17,500 $638 $17,500 No Actual/360 0
139 $0 $0 $0 No Actual/360 1
140 $0 $0 $0 No Actual/360 1
146 $0 $0 $0 No Actual/360 2
147 $0 $0 $0 No Actual/360 0
149 $0 $0 $0 No Actual/360 2
151 $0 $0 $0 No Actual/360 1
152 $50,000 $0 $0 No Actual/360 1
158 $0 $0 $0 No Actual/360 2
163 $0 $0 $0 No Actual/360 1
Totals and Weighted Averages:
Prepayment Code(25)
---------------------------------------------------------------------
Mortgage Administrative Mortgage
Loan No. LO DEF DEF/YM1 YM3 YM1 3% 2% 1% Open YM Formula(27) Cost Rate (28) Loan No.
-------- -- --- ------- --- --- - - - ---- -------------- ------------- --------
18 23 93 4 5.085 18
21 23 93 4 5.085 21
22 23 1 92 4 D 5.085 22
23 25 91 4 5.085 23
32 26 90 4 5.085 32
35 27 89 4 5.085 35
42 24 92 4 5.085 42
44 25 91 4 5.085 44
45 26 66 4 5.085 45
56 24 92 4 5.085 56
64 26 90 4 5.085 64
65 26 90 4 5.085 65
72 24 92 4 5.085 72
89 26 90 4 5.085 89
92 25 91 4 5.085 92
97 25 91 4 5.085 97
98 25 91 4 5.085 98
100 25 91 4 5.085 100
108 26 90 4 5.085 108
110 25 91 4 5.085 110
120 23 93 4 5.085 120
126 19 39 2 M 5.085 126
130 25 91 4 5.085 130
132 26 90 4 5.085 132
134 24 92 4 5.085 134
137 24 92 4 5.085 137
139 25 91 4 5.085 139
140 25 91 4 5.085 140
146 26 90 4 5.085 146
147 24 92 4 5.085 147
149 26 90 4 5.085 149
151 25 91 4 5.085 151
152 25 91 4 5.085 152
158 26 90 4 5.085 158
163 25 91 4 5.085 163
Totals and Weighted Averages:
SCHEDULE V
Mortgage Loans for which Disbursement of Earnouts and Holdbacks to be Processed
by the General Special Servicer
MS IQ13 Holdback/Earnout Schedule
------------------------------------------------------------------------------------------------------------------------------------
Loan Name Cutoff Balance Earn-out/Holdback/Letter-of-Credit Amount Notes
------------------------------------------------------------------------------------------------------------------------------------
Northridge I 27,400,000 Debt Service Reserve 400,000
000 Xxxxxxx Xxxxxx 25,500,000 Interest Escrow LOC 1,500,000
Xxxx Xxxxxxx Place 15,600,000 Holdback 275,000
Univ. of Pennsylvania Nursing 14,200,000 Holdback 11,970,880 $8MM LOC only to be
reviewed by SS
IVY MHP - Tallowwood Isles 12,600,000 Master Lease Holdback Reserve 45,700
Crossings at Xxxxxxx Station 10,400,000 Holdback ($600,000) 943,375
IVY MHP - Kissimmee Gardens 9,100,000 Master Lease Holdback Reserve 31,200
Apache Plaza 8,000,000 Taco Xxxx ($1MM); Leasing Reserve ($1MM) 2,000,000
Post Office Partners 6,500,000 Earn-out 200,000
PNC at Newtown Square 4,784,792 PNC Bank Reserve 263,000
Westwood Square (ADF) 4,600,000 LOC 335,000
Briarcliff Village 3,490,092 Vacancy Holdback Reserve 100,000
Pine Tree Commons 2,800,000 Holdback 300,000
IVY MHP - Shady Road Villas 1,900,000 Master Lease Holdback Reserve 27,100
Oak Plaza 1,455,000 Yes 160,000
000 Xxxxx Xxxxx Xxxxxx 1,047,785 Holdback 165,000
Shoppes @ Highland 1,043,000 Yes 118,000
Lakeland Hills Plaza 708,000 Yes 188,000
SCHEDULE VI
[ Reserved ]
SCHEDULE VII
LIST OF ESCROW ACCOUNTS NOT CURRENTLY ELIGIBLE ACCOUNTS
(Section 8.3(e))
Xxxxxx Xxxxxxx Mortgage Capital Inc.
------------------------------------
NONE
Natixis Real Estate Capital Inc.
--------------------------------
NONE
NCB, FSB:
---------
NONE
SunTrust Bank:
--------------
NONE
SCHEDULE VIII
CERTAIN ESCROW ACCOUNTS FOR WHICH A REPORT
UNDER SECTION 5.1(g) IS REQUIRED
Xxxxxx Xxxxxxx Mortgage Capital Inc.:
-------------------------------------
Apache Plaza
Natixis Real Estate Capital Inc.:
---------------------------------
Environmental Reserves:
United Investors Portfolio $424,505 (Loan - total for portfolio)
Xxxxxxx Xxxxx Plaza $1515,565 (United Investors Property)
Kingsbaker Court $112,133 (United Investors Property)
Elmdale Building $52,986 (United Investors Property)
Giant Foods $84,653
Deferred Maintenance Reserve:
United Investors Portfolio $138,332 (Loan - total for portfolio)
(Kingsbaker Court $80,000 (United Investors Property))
WeHo 7 Portfolio LA Multis $371,656 (Loan - total for portfolio)
0000-00 Xxxxxxxx Xx. $110,125 WeHo 7 Property
000 X. Xxxxxxxx Xx. $92,781 WeHo 7 Property
Country Club Center Xxxxx $85,625
Shoppers at Xxxxx $165,482
NCB, FSB:
---------
Xxxxxxx Mutual Homes, Inc.
Fairburn Towne Houses, Inc.
Knollwood Manor, Inc.
Mainstay Cooperative Section One
Xxxxxxxxxxx Townhouses
Penn Nursing Building
Happy valley Apartments
Xxxxxxxx Place Owners
Bay Terrace Cooperative Section X
SunTrust Bank:
--------------
[NONE]
SCHEDULE IX
LIST OF MORTGAGORS THAT ARE THIRD-PARTY BENEFICIARIES UNDER SECTION 2.3(a)
Xxxxxx Xxxxxxx Mortgage Capital Inc.:
-------------------------------------
IVY MHP - Tallowood Isles
IVY MHP - Kissimmee Gardens
IVY MHP - Paddock Park South
IVY MHP - Shady Road Villas
LV Portfolio - Pecos XxXxxx Office Building
LV Portfolio - White Sands Retail Building
Natixis Real Estate Capital Inc.:
---------------------------------
Country Club Center - Xxxxx
Main Street - Xxxxx
Shoppers at Lakewood - Xxxxx
NCB, FSB:
---------
NONE
SunTrust Bank:
--------------
NONE
SCHEDULE X
[Reserved]
SCHEDULE XI
EARN-OUT RESERVES
Xxxxxx Xxxxxxx Mortgage Capital Inc.:
-------------------------------------
NONE
Natixis Real Estate Capital Inc.:
---------------------------------
NONE
NCB, FSB:
---------
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxxxx Xxxx Center
SunTrust Bank:
--------------
NONE
LIST OF MORTGAGE LOANS FOR WHICH A SCHEDULED PAYMENT IS DUE
AFTER THE END OF A COLLECTION PERIOD
Xxxxxx Xxxxxxx Mortgage Capital Inc.:
-------------------------------------
NA
Natixis Real Estate Capital Inc.:
---------------------------------
Pan Western - LJ Melody
Airport Industrial Park East & West - XX Xxxxxx
Xxxxxxx Inn Xxxxxxxx - Laureate Capital
NCB, FSB:
---------
NA
SunTrust Bank:
--------------
NA
SCHEDULE XIII
LIST OF MORTGAGE LOANS THAT PERMIT VOLUNTARY PRINCIPAL
PREPAYMENT WITHOUT PAYMENT OF A FULL MONTH'S INTEREST
Xxxxxx Xxxxxxx Mortgage Capital Inc.:
-------------------------------------
NA
Natixis Real Estate Capital Inc.:
---------------------------------
NA
NCB, FSB:
---------
NA
SunTrust Bank:
--------------
NA
SCHEDULE XIV
[Reserved]
SCHEDULE XV
[Reserved]
SCHEDULE XVI
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria":
---------------------------------------------------------------------------------------------------- -------------------
Applicable
Relevant Servicing Criteria Party(ies)
-------------------- ------------------------------------------------------------------------------- -------------------
Reference Criteria
-------------------- ------------------------------------------------------------------------------- -------------------
General Servicing Considerations
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Trustee
triggers and events of default in accordance with the transaction agreements. Master Servicers
Special Servicers
Primary Servicers
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(ii) Trustee
If any material servicing activities are outsourced to third parties, Master Servicers
policies and procedures are instituted to monitor the third party's Special Servicers
performance and compliance with such servicing activities. Primary Servicers
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(iii) N/A
Any requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(iv) Trustee
A fidelity bond and errors and omissions policy is in effect on the party Master Servicers
participating in the servicing function throughout the reporting period in Special Servicers
the amount of coverage required by and otherwise in accordance with the terms Primary Servicers
of the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
Cash Collection and Administration
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(i) Trustee
Payments on mortgage loans are deposited into the appropriate custodial bank Master Servicers
accounts and related bank clearing accounts no more than two business days Special Servicers
following receipt, or such other number of days specified in the transaction Primary Servicers
agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(ii) Trustee
Disbursements made via wire transfer on behalf of an obligor or to an Master Servicers
investor are made only by authorized personnel. Primary Servicers
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(iii) Master Servicers
Advances of funds or guarantees regarding collections, cash flows or Special Servicers
distributions, and any interest or other fees charged for such advances, are Primary Servicers
made, reviewed and approved as specified in the transaction agreements. Trustee
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(iv) Trustee
The related accounts for the transaction, such as cash reserve accounts or Master Servicers
accounts established as a form of overcollateralization, are separately Special Servicers
maintained (e.g., with respect to commingling of cash) as set forth in the Primary Servicers
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(v) Trustee
Each custodial account is maintained at a federally insured depository Master Servicers
institution as set forth in the transaction agreements. For purposes of this Special Servicers
criterion, "federally insured depository institution" with respect to a Primary Servicers
foreign financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(vi) Master Servicers
Unissued checks are safeguarded so as to prevent unauthorized access. Special Servicers
Primary Servicers
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(vii)
Reconciliations are prepared on a monthly basis for all asset-backed Trustee
securities related bank accounts, including custodial accounts and related Master Servicers
bank clearing accounts. These reconciliations are (A) mathematically Special Servicers
accurate; (B) prepared within 30 calendar days after the bank statement Primary Servicers
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 the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports:
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(i)(A) Master Servicers
(A) Are prepared in accordance with timeframes and other terms set forth in Primary Servicers
the transaction agreements; Special Servicers
Trustee
Party who files
report
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(i)(B) Trustee
(B) Provide information calculated in accordance with the terms specified in
the transaction agreements;
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(i)(C) Party who files
(C) Are filed with the Commission as required by its rules and regulations; report
and
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(i)(D) Trustee
(D) Agree with investors' or the Paying Agent's records as to the total
unpaid principal balance and number of pool assets serviced by each of the
Master Servicers, Special Servicers and Primary Servicers.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(ii) Trustee
Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(iii) Trustee
Disbursements made to an investor are posted within two business days to the
Servicer's investor records, or such other number of days specified in the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(iv) Trustee
Amounts remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
-------------------- ------------------------------------------------------------------------------- -------------------
Pool Asset Administration
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(i) Trustee
Collateral or security on mortgage loans is maintained as required by the Master Servicers
transaction agreements or related mortgage loan documents. Special Servicers
Primary Servicers
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(ii) Trustee
Mortgage loan and related documents are safeguarded as required by the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(iii) Trustee
Any additions, removals or substitutions to the asset pool are made, reviewed Master Servicers
and approved in accordance with any conditions or requirements in the Special Servicers
transaction agreements. Primary Servicers
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(iv) Master Servicers
Payments on mortgage loans, including any payoffs, made in accordance with Primary Servicers
the related mortgage loan 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) Master Servicers
The Servicer's records regarding the mortgage loans agree with the Servicer's Primary Servicers
records with respect to an obligor's unpaid principal balance.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(vi) Master Servicers
Changes with respect to the terms or status of an obligor's mortgage loans Special Servicers
(e.g., loan modifications or re-agings) are made, reviewed and approved by Primary Servicers
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(vii) Master Servicers
Loss mitigation or recovery actions (e.g., forbearance plans, modifications Special Servicers
and deeds in lieu of foreclosure, foreclosures and repossessions, as Primary Servicers
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(viii) Master Servicers
Records documenting collection efforts are maintained during the period a Special Servicers
mortgage loan is delinquent in accordance with the transaction agreements. Primary Servicers
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) Master Servicers
Adjustments to interest rates or rates of return for mortgage loans with Primary Servicers
variable rates are computed based on the related mortgage loan documents.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(x) Master Servicers
Regarding any funds held in trust for an obligor (such as escrow accounts): Primary Servicers
(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) Master Servicers
Payments made on behalf of an obligor (such as tax or insurance payments) are Primary Servicers
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) Master Servicers
Any late payment penalties in connection with any payment to be made on Primary Servicers
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) Master Servicers
Disbursements made on behalf of an obligor are posted within two business Primary Servicers
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) Master Servicers
Delinquencies, charge-offs and uncollectible accounts are recognized and Primary Servicers
recorded in accordance with the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(xv) N/A
Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
SCHEDULE XVII
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.4 of this Agreement to disclose to the Depositor and the Paying
Agent any information described in the corresponding Form 10-D Item described in
the "Item on Form 10-D" column to the extent such party has knowledge (and in
the case of financial statements required to be provided in connection with Item
6 below, possession) of such information (other than information as to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement).
--------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------
Item 1: Distribution and Pool o Master Servicers
Performance Information: o Special Servicers (only with
o Only with respect to any respect to 1121(a)(12) as to
information required by 1121 Specially Serviced Loans)
which is NOT included on the o Primary Servicers
Distribution Date Statement o Trustee
o Depositor
--------------------------------------------------------------------------------
Item 2: Legal Proceedings: o Each Master Servicer (as to itself)
o Item 1117 of Regulation AB (to o Each Special Servicer (as to itself)
the extent material to o Trustee (as to itself)
Certificateholders) o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to
itself)
o Trustee/Paying Agent/Master
Servicers/Depositor/Special
Servicers as to the Trust (in the
case of the Master Servicers and
Special Servicers, to be reported
by the party controlling such
litigation pursuant to Section
9.40)
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided
by the Depositor)
o Originators under Item 1110 of
Regulation AB
o Any party under Item 1100(d)(1) of
Regulation AB
--------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of o Depositor
Proceeds
--------------------------------------------------------------------------------
Item 4: Defaults Upon Senior o Trustee
Securities o Paying Agent
--------------------------------------------------------------------------------
Item 5: Submission of Matters to a o Trustee
Vote of Security Holders o Paying Agent
--------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool o Depositor
Assets (including, without o Sponsors
limitations, the net operating income o Sellers
of a significant obligor required to o Master Servicers
be reported under Item 1112(b) o Each Primary Servicer (as to loans
Regulation AB) serviced by it)
--------------------------------------------------------------------------------
Item 7: Significant Enhancement o N/A
Provider Information
--------------------------------------------------------------------------------
Item 8: Other Information o Any party responsible for
(information required to be disclosed disclosure items on Form 8-K
on Form 8-K that was not properly
disclosed)
--------------------------------------------------------------------------------
Item 9: Exhibits o Depositor
o Master Servicers
o Trustee
o Primary Servicers
--------------------------------------------------------------------------------
SCHEDULE XVIII
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.5 of this Agreement to disclose to the Depositor and the Paying
Agent any information described in the corresponding Form 10-K Item described in
the "Item on Form 10-K" column to the extent such party has actual knowledge
(and in the case of financial statements required to be provided in connection
with 1112(b) below, possession) of such information (other than information as
to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement).
--------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
--------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
--------------------------------------------------------------------------------
Item 9B: Other Information o Any party responsible for disclosure
(information required to be disclosed items on Form 8-K
on Form 8-K that was not properly
disclosed)
--------------------------------------------------------------------------------
Item 15: Exhibits, Financial o Trustee
Statement Schedules o Depositor
--------------------------------------------------------------------------------
Additional Item: o Each Master Servicer (as to itself)
o Each Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation o Paying Agent (as to itself)
AB o Trustee (as to itself)
(to the extent material to o Depositor (as to itself)
Certificateholders) o Each Primary Servicer (as to itself)
o Any other Reporting Servicer (as to
itself)
o Trustee/Master
Servicers/Depositor/Special
Servicers as to the Trust (in the
case of the Master Servicers and
the Special Servicers to be
reported by the party controlling
such litigation pursuant to
Section 9.40)
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided by
the Depositor)
o Originators under Item 1110 of
Regulation AB
o Party under Item 1100(d)(1) of
Regulation AB
--------------------------------------------------------------------------------
Additional Item: o Each Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation (to the extent material to
AB Certificateholders and only as to
affiliations under 1119(a))
o Each Special Servicer (as to itself)
(to the extent material to
Certificateholders and only as to
affiliations under 1119(a))
o Each Primary Servicer (as to
itself)(to the extent material to
Certificateholders and only as to
affiliations under 1119(a))
o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Each Primary Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicers/Depositor/Special
Servicers as to the Trust
o Each Seller as sponsor (as defined
in Regulation AB) (to be provided by
the Depositor)
o Originators under Item 1110 of
Regulation AB
o Party under Item 1100(d)(1) of
Regulation AB
--------------------------------------------------------------------------------
Additional Item: o N/A
Disclosure per Item 1112(b) of
Regulation AB
--------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and o Trustee
1115(b) of Regulation AB
--------------------------------------------------------------------------------
SCHEDULE XIX
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.7 of this Agreement to report to the Depositor and the Paying
Agent the occurrence of any event described in the corresponding Form 8-K Item
described in the "Item on Form 8-K" column to the extent such party has actual
knowledge of such information (other than information as to itself).
For purposes of the reporting contemplated by this Schedule, each of the Paying
Agent, the Trustee, each Master Servicer, each Primary Servicer and each Special
Servicer (in its capacity as such) shall be entitled to assume that the
Prospectus Supplement, as supplemented or amended to and including the Closing
Date, was, as of the date thereof, accurate and in compliance with Regulation AB
(other than information with respect to such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, that is set forth
in or omitted from the Prospectus Supplement and other than such information (if
any) regarding any Mortgage Loan for which such Paying Agent, Trustee, Master
Servicer, Primary Servicer or Special Servicer, as applicable, is the related
Seller that is set forth in or omitted from the Prospectus Supplement).
----------------------------------------------------------------------------
Item on Form 8-K Party Responsible
----------------------------------------------------------------------------
Item 1.01- Entry into a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
----------------------------------------------------------------------------
Item 1.02- Termination of a Material o All parties (only as to the
Definitive Agreement agreements such entity is a
party to or entered into on
behalf of the Trust)
----------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
----------------------------------------------------------------------------
Item 2.04- Triggering Events that o Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
----------------------------------------------------------------------------
Item 3.03- Material Modification to o Trustee
Rights of Security Holders
----------------------------------------------------------------------------
Item 5.03- Amendments of Articles of o Depositor
Incorporation or Bylaws; Change of
Fiscal Year
----------------------------------------------------------------------------
Item 6.01- ABS Informational and o Depositor
Computational Material
----------------------------------------------------------------------------
Item 6.02- Change of Servicer or o Master Servicers (as to itself
Trustee or a servicer retained by it)
o Special Servicers (as to itself
or a servicer retained by it)
o Primary Servicers (as to itself
or a servicer retained by it)
o Trustee
o Depositor
----------------------------------------------------------------------------
Item 6.03- Change in Credit o Depositor
Enhancement or External Support o Trustee
----------------------------------------------------------------------------
Item 6.04- Failure to Make a Required o Paying Agent
Distribution
----------------------------------------------------------------------------
Item 6.05- Securities Act Updating o Depositor
Disclosure
----------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
----------------------------------------------------------------------------
Item 8.01 o Depositor
----------------------------------------------------------------------------
Item 9.01 o Depositor
----------------------------------------------------------------------------
Schedule XX
SELLER SUB-SERVICERS
Seller Sub-servicers retained as of the Closing Date by the General Master
Servicer
--------------------------------------------------------------------------------
SunTrust Bank (SunTrust Loans)
Laureate Capital LLC and CBRE (Natixis Loans)
Seller Sub-servicers retained as of the Closing Date by the NCB Master Servicer
--------------------------------------------------------------------------------
Columbia National Real Estate Finance, LLC (Orchard Village Loan)
Seller Sub-servicers retained as of the Closing Date by the General Special
Servicer
--------------------------------------------------------------------------------
None
Seller Sub-servicers retained as of the Closing Date by the Co-op Special
Servicer
--------------------------------------------------------------------------------
None
