EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
MIDLAND LOAN SERVICES, INC.,
Master Servicer
CENTERLINE SERVICING INC.,
Special Servicer
and
XXXXX FARGO BANK, N.A.,
Trustee and Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
September 28, 2007
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC20
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC20
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms...............................................
Section 1.02 Certain Calculations........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by Trustee.......................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and
Warranties................................................
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests......................................
Section 2.05 Grantor Trust Designations..................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration
of the Mortgage Loans.....................................
Section 3.02 Collection of Mortgage Loan Payments........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts........................................
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account,
the Interest Reserve Account, the Gain-on-Sale Reserve
Account and the Floating Rate Account.....................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts, the Companion Distribution Account
and the Floating Rate Account.............................
Section 3.06 Investment of Funds in the Certificate Account and the REO
Account...................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.....................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements................................................
Section 3.09 Realization Upon Defaulted Mortgage Loans...................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.............
Section 3.11 Servicing Compensation......................................
Section 3.12 Inspections; Collection of Financial
Statements................................................
Section 3.13 [Reserved]..................................................
Section 3.14 [Reserved]..................................................
Section 3.15 Access to Certain Information...............................
Section 3.16 Title to REO Property; REO Account..........................
Section 3.17 Management of REO Property..................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.........
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer..................................................
Section 3.20 Modifications, Waivers, Amendments and Consents.............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report..............
Section 3.22 Sub-Servicing Agreements....................................
Section 3.23 Representations, Warranties and Covenants of the Master
Servicer..................................................
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer..................................................
Section 3.25 Interest Reserve Account....................................
Section 3.26 [Reserved]..................................................
Section 3.27 Directing Certificateholder Contact with Master Servicer
and Special Servicer......................................
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing
Certificateholder.........................................
Section 3.29 Intercreditor Agreements....................................
Section 3.30 Companion Paying Agent......................................
Section 3.31 Companion Register..........................................
Section 3.32 Swap Contract...............................................
Section 3.33 Certain Matters Relating to the Non-Serviced Mortgage
Loans.....................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions...............................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s; Grant of Power of Attorney................
Section 4.03 P&I Advances................................................
Section 4.04 Allocation of Collateral Support Deficit....................
Section 4.05 Appraisal Reductions........................................
Section 4.06 Certificate Deferred Interest...............................
Section 4.07 Grantor Trust Reporting.....................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates............................................
Section 5.02 Registration of Transfer and Exchange of
Certificates..............................................
Section 5.03 Book-Entry Certificates.....................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates...........
Section 5.05 Persons Deemed Owners.......................................
Section 5.06 Certificate Ownership Certification.........................
Section 5.07 Appointment of Paying Agent.................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer..........................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer...................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others.................
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign....................................................
Section 6.05 Rights of the Depositor in Respect of the Master Servicer
and the Special Servicer..................................
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner.........................................
Section 6.07 The Directing Certificateholder.............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination...............................................
Section 7.02 Trustee to Act; Appointment of Successor....................
Section 7.03 Notification to Certificateholders..........................
Section 7.04 Waiver of Events of Default.................................
Section 7.05 Trustee as Maker of Advances...............................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent..................
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.....................................................
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.............
Section 8.04 Trustee or Paying Agent May Own
Certificates..............................................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent...............
Section 8.06 Eligibility Requirements for Trustee and Paying
Agent.....................................................
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent.....................................................
Section 8.08 Successor Trustee or Paying Agent...........................
Section 8.09 Merger or Consolidation of Trustee or Paying
Agent.....................................................
Section 8.10 Appointment of Co-Trustee or Separate
Trustee...................................................
Section 8.11 Appointment of Custodians...................................
Section 8.12 Access to Certain Information...............................
Section 8.13 Representations and Warranties of the Trustee...............
Section 8.14 Representations and Warranties of the Paying
Agent.....................................................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All Mortgage
Loans.....................................................
Section 9.02 Additional Termination Requirements.........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration........................................
Section 10.02 Use of Agents...............................................
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent...............................
Section 10.04 Appointment of REMIC Administrators.........................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness.......................
Section 11.02 Succession; Subcontractors..................................
Section 11.03 Filing Obligations..........................................
Section 11.04 Form 10-D Filings...........................................
Section 11.05 Form 10-K Filings...........................................
Section 11.06 Xxxxxxxx-Xxxxx Certification................................
Section 11.07 Form 8-K Filings............................................
Section 11.08 Form 15 Filing..............................................
Section 11.09 Annual Compliance Statements................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria..................................................
Section 11.11 Annual Independent Public Accountants' Attestation
Report....................................................
Section 11.12 Indemnification.............................................
Section 11.13 Amendments..................................................
Section 11.14 Regulation AB Notices.......................................
Section 11.15 Certain Matters Relating to the Future Securitization of
the Serviced Companion Loans..............................
Section 11.16 Certain Matters Regarding Significant
Obligors..................................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment...................................................
Section 12.02 Recordation of Agreement; Counterparts......................
Section 12.03 Limitation on Rights of Certificateholders..................
Section 12.04 Governing Law...............................................
Section 12.05 Notices.....................................................
Section 12.06 Severability of Provisions..................................
Section 12.07 Grant of a Security Interest................................
Section 12.08 Successors and Assigns; Third Party
Beneficiaries.............................................
Section 12.09 Article and Section Headings................................
Section 12.10 Notices to the Rating Agencies..............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class A-SB Certificate
Exhibit A-6 Form of Class A-1A Certificate
Exhibit A-7 Form of Class X-2 Certificate
Exhibit A-8 Form of Class A-M Certificate
Exhibit A-9 Form of Class A-MFL Certificate
Exhibit A-10 Form of Class A-J Certificate
Exhibit A-11 Form of Class X-1 Certificate
Exhibit A-12 Form of Class B Certificate
Exhibit A-13 Form of Class C Certificate
Exhibit A-14 Form of Class D Certificate
Exhibit A-15 Form of Class E Certificate
Exhibit A-16 Form of Class F Certificate
Exhibit A-17 Form of Class G Certificate
Exhibit A-18 Form of Class H Certificate
Exhibit A-19 Form of Class J Certificate
Exhibit A-20 Form of Class K Certificate
Exhibit A-21 Form of Class L Certificate
Exhibit A-22 Form of Class M Certificate
Exhibit A-23 Form of Class N Certificate
Exhibit A-24 Form of Class P Certificate
Exhibit A-25 Form of Class Q Certificate
Exhibit A-26 Form of Class T Certificate
Exhibit A-27 Form of Class NR Certificate
Exhibit A-28 Form of Class R Certificate
Exhibit A-29 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during
Restricted Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [Reserved]
Exhibit M Controlling Class Certificateholder's Reports Checklist
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate
during Restricted Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Initial Companion Holders
Exhibit R Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
Exhibit S Information Request from Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit T Trustee Certification/Exception Report
Exhibit U Form of Notice Relating to the Non-Serviced Mortgage Loans
Exhibit V Form Certification to be Provided with Form 10-K
Exhibit W-1 Form of Certification to be Provided to Depositor by
Paying Agent
Exhibit W-2 Form of Certification to be Provided to Depositor by
Master Servicer
Exhibit W-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit X Servicing Criteria to be Addressed in Assessment of
Compliance
Exhibit Y Additional Form 10-D Disclosure
Exhibit Z Additional Form 10-K Disclosure
Exhibit AA Form 8-K Disclosure Information
Exhibit BB Additional Disclosure Notification
Exhibit CC Servicing and Subservicing Agreements
Exhibit DD Servicing Function Participants
Exhibit EE Form of Annual Compliance Statement
Exhibit FF Form of Report on Assessment of Compliance with Servicing
Criteria
Exhibit GG Swap Contract Related to the Class A-MFL Certificates
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans Which Initially Pay Interest Only
Schedule 3 Class X Reference Rate Schedule
Schedule 4 Class A-SB Planned Principal Balance Schedule
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of September 28, 2007, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
Centerline Servicing Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A., as
Trustee and as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause an
election to be made to treat the Trust Fund (exclusive of the Class A-MFL
Regular Interest, the Swap Contract, the Floating Rate Account and the proceeds
thereof) for federal income tax purposes as two separate real estate mortgage
investment conduits (the "Upper-Tier REMIC" and the "Lower-Tier REMIC" as
described herein).
The parties intend that the portion of the Trust Fund representing
the Class A-MFL Regular Interest, the Swap Contract, the Floating Rate Account
and the proceeds thereof will be treated as a grantor trust under subpart E of
Part I of subchapter J of the Code and that the beneficial interests therein
will be represented by the Class A-MFL Certificates.
LOWER-TIER REMIC
The Class XX-0, XX-0-0, Class LA-2-2, Class LA-2-3, Class LA-3-1,
Class LA-3-2, Class LA-3-3, Class LA-3-4, Class LA-3-5, Class LA-4-1, Class
LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-4-5, Class LA-4-6, Class LA-4-7,
Class LA-4-8, Class LA-4-9, Class LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class
LA-SB-4, Class LA-SB-5, Class LA-SB-6, Class LA-SB-7, Class LA-1A-1, Class
LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7, Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class
LA-1A-12, Class LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LA-M, Class
LA-MFL, Class LA-J, Class LB, Class LC, Class LD, Class LE-1, Class LE-2, Class
LF-1, Class LF-2, Class LG-1, Class LG-2, Class LG-3, Class LH-1, Class LH-2,
Class LJ-1, Class LJ-2, Class LJ-3, Class LK-1, Class LK-2, Class LL-1, Class
LL-2, Class LM-1, Class LM-2, Class LN, Class LP-1, Class LP-2, Class LQ, Class
LT, Class LNR-1, Class LNR-2 and Class LNR-3 Uncertificated Interests will
evidence "regular interests" in the Lower-Tier REMIC created hereunder. The sole
Class of "residual interests" in the Lower-Tier REMIC will be evidenced by the
Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Original Lower-Tier
Class Designation Interest Rate Principal Amount
------------------------------- ------------------ -------------------------
Class LA-1 (1) $ 29,042,000
Class LA-2-1 (1) $ 56,754,000
Class LA-2-2 (1) $ 32,144,000
Class LA-2-3 (1) $ 16,205,000
Class LA-3-1 (1) $ 18,144,000
Class LA-3-2 (1) $ 54,211,000
Class LA-3-3 (1) $ 92,786,000
Class LA-3-4 (1) $ 40,392,000
Class LA-3-5 (1) $ 3,048,000
Class LA-4-1 (1) $ 35,594,000
Class LA-4-2 (1) $ 37,456,000
Class LA-4-3 (1) $ 45,589,000
Class LA-4-4 (1) $ 89,159,000
Class LA-4-5 (1) $ 52,132,000
Class LA-4-6 (1) $ 45,190,000
Class LA-4-7 (1) $ 124,195,000
Class LA-4-8 (1) $ 50,343,000
Class LA-4-9 (1) $ 512,051,000
Class LA-SB-1 (1) $ 1,000
Class LA-SB-2 (1) $ 5,100,000
Class LA-SB-3 (1) $ 7,516,000
Class LA-SB-4 (1) $ 8,727,000
Class LA-SB-5 (1) $ 8,607,000
Class LA-SB-6 (1) $ 9,635,000
Class LA-SB-7 (1) $ 44,849,000
Class LA-1A-1 (1) $ 109,000
Class LA-1A-2 (1) $ 140,000
Class LA-1A-3 (1) $ 6,289,000
Class LA-1A-4 (1) $ 7,322,000
Class LA-1A-5 (1) $ 94,981,000
Class LA-1A-6 (1) $ 6,374,000
Class LA-1A-7 (1) $ 5,316,000
Class LA-1A-8 (1) $ 5,035,000
Class LA-1A-9 (1) $ 34,633,000
Class LA-1A-10 (1) $ 28,721,000
Class LA-1A-11 (1) $ 3,747,000
Class LA-1A-12 (1) $ 3,653,000
Class LA-1A-13 (1) $ 3,486,000
Class LA-1A-14 (1) $ 3,447,000
Class LA-1A-15 (1) $ 158,130,000
Class LA-M (1) $ 219,322,000
Class LA-MFL (1) $ 35,000,000
Class LA-J (1) $ 152,593,000
Class LB (1) $ 31,790,000
Class LC (1) $ 25,433,000
Class LD (1) $ 28,611,000
Class LE-1 (1) $ 9,076,000
Class LE-2 (1) $ 13,177,000
Class LF-1 (1) $ 14,204,000
Class LF-2 (1) $ 8,049,000
Class LG-1 (1) $ 2,868,000
Class LG-2 (1) $ 18,768,000
Class LG-3 (1) $ 3,796,000
Class LH-1 (1) $ 18,225,000
Class LH-2 (1) $ 16,745,000
Class LJ-1 (1) $ 6,295,000
Class LJ-2 (1) $ 22,286,000
Class LJ-3 (1) $ 3,209,000
Class LK-1 (1) $ 11,881,000
Class LK-2 (1) $ 16,730,000
Class LL-1 (1) $ 19,886,000
Class LL-2 (1) $ 11,904,000
Class LM-1 (1) $ 5,718,000
Class LM-2 (1) $ 3,819,000
Class LN (1) $ 6,359,000
Class LP-1 (1) $ 7,247,000
Class LP-2 (1) $ 11,827,000
Class LQ (1) $ 3,179,000
Class LT (1) $ 9,537,000
Class LNR-1 (1) $ 456
Class LNR-2 (1) $ 4,716,000
Class LNR-3 (1) $ 20,716,000
Class LR None(2) None
---------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Regular Distribution Amount shall be distributed to the Holders of the
Class LR Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date, if any, remaining in the
Lower-Tier Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class X-0, Xxxxx X-0, Class A-SB, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class
T, Class NR, Class X-1 and Class X-2 Certificates and the Class A-MFL Regular
Interest will evidence "regular interests" in the Upper-Tier REMIC created
hereunder. The sole Class of "residual interests" in the Upper-Tier REMIC
created hereunder will be evidenced by the Class R Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount (the "Original Notional
Amount"), as applicable, and the initial ratings given each Class by the Rating
Agencies for each Class of Certificates and the Class A-MFL Regular Interest
comprising the interests in the Upper-Tier REMIC created hereunder:
Original
Initial Certificate
Pass-Through Balance or Ratings(1)
Rate Notional Amount (Xxxxx'x/S&P/Fitch)
------------ --------------- -------------------
Class A-1 Certificates(2) 5.2730% $ 29,042,000 Aaa/AAA/AAA
Class A-2 Certificates 5.6290% $ 105,103,000 Aaa/AAA/AAA
Class A-3 Certificates(2) 5.8190% $ 208,581,000 Aaa/AAA/AAA
Class A-4 Certificates(2) 5.7940%(3) $ 991,709,000 Aaa/AAA/AAA
Class A-SB Certificates 5.6880% $ 84,435,000 Aaa/AAA/AAA
Class A-1A Certificates(2) 5.7460%(3) $ 361,383,000 Aaa/AAA/AAA
Class A-M Certificates 5.9016%(7) $ 219,322,000 Aaa/AAA/AAA
Class A-MFL Regular Interest(4) 5.9300%(3) $ 35,000,000(5) Aaa/AAA/AAA(6)
Class A-J Certificates 6.0986%(7) $ 152,593,000 Aaa/AAA/AAA
Class B Certificates 6.1986%(8) $ 31,790,000 Aa1/AA+/AA+
Class C Certificates 6.1986%(8) $ 25,433,000 Aa2/AA/AA
Class D Certificates 6.1986%(8) $ 28,611,000 Aa3/AA-/AA-
Class E Certificates 6.1986%(8) $ 22,253,000 A1/A+/A+
Class F Certificates 6.1986%(8) $ 22,253,000 A2/A/A
Class G Certificates 6.1986%(8) $ 25,432,000 A3/A-/A-
Class H Certificates 6.1986%(8) $ 34,970,000 Baa1/BBB+/BBB+
Class J Certificates 6.1986%(8) $ 31,790,000 Baa2/BBB/BBB
Class K Certificates 6.1986%(8) $ 28,611,000 Baa3/BBB-/BBB-
Class L Certificates 5.0810% $ 31,790,000 */BB+/BB+
Class M Certificates 5.0810% $ 9,537,000 */BB/BB
Class N Certificates 5.0810% $ 6,359,000 */BB-/BB-
Class P Certificates 5.0810% $ 19,074,000 */B+/*
Class Q Certificates 5.0810% $ 3,179,000 */B/*
Class T Certificates 5.0810% $ 9,537,000 */B-/*
Class NR Certificates 5.0810% $ 25,432,456 */*/*
Class R Certificates N/A(9) N/A(9) */*/*
Class X-1 Certificates 0.0493%(10) $2,543,219,456(11) Aaa/AAA/AAA
Class X-2 Certificates 0.3481%(10) $2,457,314,000(11) Aaa/AAA/AAA
---------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-SB and Class A-1A Certificates, the pool of
Mortgage Loans will be deemed to consist of two distinct Loan Groups, Loan
Group 1 and Loan Group 2.
(3) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(4) The Class A-MFL Regular Interest will be uncertificated and will be
transferred to the Trust Fund on the Closing Date, and the Trust will
issue the Class A-MFL Certificates in exchange therefor. The Pass-Through
Rate applicable to the Class A-MFL Regular Interest on each Distribution
Date will be equal to the Class A-MFL Regular Interest Pass-Through Rate.
The Pass-Through Rate applicable to the Class A-MFL Certificates on each
Distribution Date will be equal to the Class A-MFL Pass-Through Rate.
(5) The Certificate Balance of the Class A-MFL Certificates will be equal at
all times to the Certificate Balance of the Class A-MFL Regular Interest.
The Original Certificate Balance of the Class A-MFL Certificates will be
equal to $35,000,000.
(6) The Class A-MFL Regular Interest will not be rated. The ratings shown are
with respect to the Class A-MFL Certificates and only reflect receipt of
interest at the Class A-MFL Regular Interest Pass-Through Rate.
(7) The Pass-Through Rate for any Distribution Date for the Class A-M and
Class A-J Certificates will be a per annum rate equal to the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.2970% and
0.1000%, respectively.
(8) The Pass-Through Rate for any Distribution Date for the Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates will be the Weighted Average Net Mortgage Rate.
(9) The Class R Certificates will not have a Certificate Balance or a Notional
Amount, will not bear interest and will not be entitled to distributions
of Yield Maintenance Charges. Any Available Distribution Amount remaining
in the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(10) The Pass-Through Rate for the Class X-1 and Class X-2 Certificates will be
calculated in accordance with the related definitions of "Class X-1
Pass-Through Rate" and "Class X-2 Pass-Through Rate", as applicable.
(11) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable.
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$2,543,219,457.
The Gurnee Xxxxx Xxxx Passu Companion Loan, the Sawgrass Xxxxx Mall
Companion Loans, the USFS Industrial Distribution Portfolio Pari Passu Companion
Loans and the Xxxxxxxxx Plaza Companion Loans (collectively, the "Companion
Loans") are not part of the Trust Fund, but are secured by the same Mortgage
that secures the related Mortgage Loan that is part of the Trust Fund. As and to
the extent provided herein, the Companion Loans (other than the Non-Serviced
Companion Loans) will be serviced and administered in accordance with this
Agreement. Amounts attributable to the Companion Loans will not be assets of the
Trust Fund, and (except to the extent that such amounts are payable or
reimbursable to any party to this Agreement) will be owned by the related
Companion Holders.
The Gurnee Xxxxx Whole Loan consists of the Gurnee Xxxxx Mortgage
Loan and the Gurnee Xxxxx Xxxx Passu Companion Loan. The Gurnee Xxxxx Mortgage
Loan and the Gurnee Xxxxx Xxxx Passu Companion Loan are pari passu with each
other. The Gurnee Xxxxx Mortgage Loan is part of the Trust Fund. The Gurnee
Xxxxx Xxxx Passu Companion Loan is not part of the Trust Fund. The Gurnee Xxxxx
Mortgage Loan and the Gurnee Xxxxx Mall Pari Passu Companion Loan will be
serviced and administered in accordance with this Agreement and the Gurnee Xxxxx
Intercreditor Agreement.
The Xxxxxxxxx Plaza Whole Loan consists of the Xxxxxxxxx Plaza
Mortgage Loan, the Xxxxxxxxx Plaza Pari Passu Companion Loan and the Xxxxxxxxx
Plaza Subordinate Companion Loan. The Xxxxxxxxx Plaza Mortgage Loan and the
Xxxxxxxxx Plaza Pari Passu Companion Loan are pari passu with each other and the
Xxxxxxxxx Plaza Subordinate Companion Loan is subordinate to the Xxxxxxxxx Plaza
Mortgage Loan and the Xxxxxxxxx Plaza Pari Passu Companion Loan. The Xxxxxxxxx
Plaza Mortgage Loan is part of the Trust Fund. The Xxxxxxxxx Plaza Pari Passu
Companion Loan and the Xxxxxxxxx Plaza Subordinate Companion Loan are not part
of the Trust Fund. The Xxxxxxxxx Plaza Mortgage Loan, the Xxxxxxxxx Plaza Pari
Passu Companion Loan and the Xxxxxxxxx Plaza Subordinate Companion Loan will be
serviced and administered in accordance with this Agreement and the Xxxxxxxxx
Plaza Intercreditor Agreements.
The Sawgrass Xxxxx Mall Whole Loan consists of the Sawgrass Xxxxx
Mall Mortgage Loan, the Sawgrass Xxxxx Mall Pari Passu Companion Loans and the
Sawgrass Xxxxx Mall Subordinate Companion Loans. The Sawgrass Xxxxx Mall Pari
Passu Companion Loans consist of the Sawgrass Xxxxx Mall A-1 Pari Passu
Companion Loan, the Sawgrass Xxxxx Mall A-3 Pari Passu Companion Loan, the
Sawgrass Xxxxx Mall A-4 Pari Passu Companion Loan and the Sawgrass Xxxxx Mall
A-5 Pari Passu Companion Loan. The Sawgrass Xxxxx Mall Subordinate Companion
Loans consist of the Sawgrass Xxxxx Mall B-1 Subordinate Companion Loan, the
Sawgrass Xxxxx Mall B-2 Subordinate Companion Loan and the Sawgrass Xxxxx Mall
B-3 Subordinate Companion Loan. The Sawgrass Xxxxx Mall Mortgage Loan and the
Sawgrass Xxxxx Mall Pari Passu Companion Loans are pari passu with each other,
and the Sawgrass Xxxxx Mall Subordinate Companion Loans are subordinate to the
Sawgrass Xxxxx Mall Mortgage Loan and the Sawgrass Xxxxx Mall Pari Passu
Companion Loans. The Sawgrass Xxxxx Mall Mortgage Loan is part of the Trust
Fund. The Sawgrass Xxxxx Mall Pari Passu Companion Loans and the Sawgrass Xxxxx
Mall Subordinate Companion Loans are not part of the Trust Fund. The Sawgrass
Xxxxx Mall Mortgage Loan, the Sawgrass Xxxxx Mall Pari Passu Companion Loans and
the Sawgrass Xxxxx Mall Subordinate Companion Loans will be serviced and
administered in accordance with the 0000-XXX00 Xxxxxxx Agreement and the
Sawgrass Xxxxx Mall Intercreditor Agreement.
The USFS Industrial Distribution Portfolio Whole Loan consists of
the USFS Industrial Distribution Portfolio Mortgage Loan and the USFS Industrial
Distribution Portfolio Pari Passu Companion Loans. The USFS Industrial
Distribution Portfolio Pari Passu Companion Loans consist of the USFS Industrial
Distribution Portfolio A-1 Pari Passu Companion Loan, the USFS Industrial
Distribution Portfolio A-2 Pari Passu Companion Loan, the USFS Industrial
Distribution Portfolio A-3 Pari Passu Companion Loan, the USFS Industrial
Distribution Portfolio A-5 Pari Passu Companion Loan and the USFS Industrial
Distribution Portfolio A-6 Pari Passu Companion Loan. The USFS Industrial
Distribution Portfolio Mortgage Loan and the USFS Industrial Distribution
Portfolio Pari Passu Companion Loans are pari passu with each other. The USFS
Industrial Distribution Portfolio Mortgage Loan is part of the Trust Fund. The
USFS Industrial Distribution Portfolio Pari Passu Companion Loans are not part
of the Trust Fund. The USFS Industrial Distribution Portfolio Mortgage Loan and
the USFS Industrial Distribution Portfolio Pari Passu Companion Loans will be
serviced and administered in accordance with the COMM 2007-C9 Pooling Agreement
and the USFS Industrial Distribution Intercreditor Agreement.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"10-K Filing Deadline": As defined in Section 11.05.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"2007-LDP12 Pooling Agreement": the pooling and servicing agreement,
dated as of August 1, 2007, among the Depositor, as depositor, Xxxxx Fargo Bank,
N.A., as master servicer, X.X. Xxxxxx Company, Inc., as special servicer, and
LaSalle Bank National Association, as trustee, as from time to time amended,
supplemented or modified relating to the issuance of the X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2007-LDP12, Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP12, or any successor pooling and
servicing agreement entered into pursuant to the Sawgrass Xxxxx Mall
Intercreditor Agreement.
"AB Mortgage Loan": A Mortgage Loan that is part of a Serviced Whole
Loan, which consists of such Mortgage Loan and any Serviced Subordinate
Companion Loans. For the avoidance of doubt, there are no AB Mortgage Loans in
the Trust.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Serviced Whole Loan (other than a Non-Serviced Mortgage Loan or a Mortgage Loan
or Serviced Whole Loan that expressly requires the Mortgagor to maintain
insurance coverage for acts of terrorism (or that expressly requires the
Mortgagor to maintain insurance coverage for acts of terrorism but limits the
amount that must be spent by the Mortgagor for the related premium)), a default
under the related Mortgage Loan documents arising by reason of (i) any failure
on the part of the related Mortgagor to maintain with respect to the related
Mortgaged Property specific insurance coverage with respect to, or an all-risk
casualty insurance policy that does not specifically exclude, terrorist or
similar acts, and/or (ii) any failure on the part of the related Mortgagor to
maintain with respect to the related Mortgaged Property insurance coverage with
respect to damages or casualties caused by terrorist or similar acts upon terms
not materially less favorable than those in place as of the Closing Date, in
each case as to which default the Master Servicer and the Special Servicer may
forbear taking any enforcement action, provided that the Special Servicer has
determined, in its reasonable judgment, based on inquiry consistent with the
Servicing Standards and with the consent of the Directing Certificateholder (or,
with respect to a Serviced Whole Loan, subject to the consent of the applicable
Serviced Whole Loan Controlling Holder), that either (a) such insurance is not
available at commercially reasonable rates and that such hazards are not at the
time commonly insured against for properties similar to the related Mortgaged
Property and located in or around the region in which such related Mortgaged
Property is located, or (b) such insurance is not available at any rate;
provided, however, the Directing Certificateholder (or, with respect to a
Serviced Whole Loan, subject to the consent of the applicable Serviced Whole
Loan Controlling Holder) will not have more than 30 days to respond to the
Special Servicer's request for consent thereto, or to object after notice
thereof; provided, further, that upon the Special Servicer's determination,
consistent with the Servicing Standards, that exigent circumstances do not allow
the Special Servicer to obtain the consent of the Directing Certificateholder
(or, with respect to a Serviced Whole Loan, subject to the consent of the
applicable Serviced Whole Loan Controlling Holder), the Special Servicer will
not be required to do so. The Special Servicer shall be entitled to rely on
insurance consultants in making the determinations described above. The costs of
such insurance consultants shall be paid from the applicable Certificate Account
as a Servicing Advance to the extent the Mortgage Loan documents do not prohibit
such amounts from being collected from the related Mortgagor and otherwise as an
expense of the Trust Fund. In no event shall a Workout Fee be payable in
connection with the resolution of an Acceptable Insurance Default.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates (other than the Class A-MFL
Certificates) and the Class A-MFL Regular Interest, an amount equal to interest
for the related Interest Accrual Period at the Pass-Through Rate of such Class
of Certificates or Class A-MFL Regular Interest, as applicable, for such
Distribution Date, accrued on the related Certificate Balance (or with respect
to the Class X-1 and Class X-2 Certificates, the Notional Amount of such Class)
outstanding immediately prior to such Distribution Date (provided that for
interest accrual purposes any distributions in reduction of Certificate Balance
or Notional Amount or reductions in Certificate Balance or Notional Amount as a
result of allocations of Collateral Support Deficit on the Distribution Date
occurring in an Interest Accrual Period shall be deemed to have been made on the
first day of such Interest Accrual Period). Accrued Certificate Interest shall
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to each
Distribution Date and any Class of Certificates (other than the Class X
Certificates, Class A-MFL Certificates and the Residual Certificates) and the
Class A-MFL Regular Interest that had an increase to its Certificate Balance as
a result of a recovery of Nonrecoverable Advances, an amount equal to interest
at the Pass-Through Rate applicable to that Class on the amount of such increase
to its Certificate Balance accrued from the Distribution Date on which
Collateral Support Deficit was allocated to such Class as a result of the
reimbursement of Nonrecoverable Advances from the Trust to, but not including,
the Distribution Date on which the Certificate Balance was so increased.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate or
pari passu loan documents (including any Intercreditor Agreement or
subordination agreement).
"Additional Disclosure Notification": The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as
Exhibit BB.
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Servicer": Each Affiliate of the Master Servicer, the
Special Servicer or either Mortgage Loan Seller that services any of the
Mortgage Loans and each Person who is not an Affiliate of the Master Servicer,
other than the Special Servicer, who services 10% or more of the Mortgage Loans.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee and the Paying Agent by either (i)
an Opinion of Counsel delivered to it, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state or local tax
laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than a Non-Serviced Mortgage Loan) and any Serviced Whole
Loan as to which an Appraisal Reduction Event has occurred, will be an amount,
calculated by the Special Servicer (which calculation may be relied upon by the
Master Servicer as of 1 day prior to the related Determination Date), as of the
first Determination Date that is at least 10 Business Days following the date on
which the Special Servicer receives an Appraisal or conducts a valuation
described below, equal to the excess of (a) the Stated Principal Balance of such
Mortgage Loan and any related Companion Loan or the Stated Principal Balance of
the applicable Serviced Whole Loan, as the case may be, over (b) the excess of
(i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property
as determined (1) by one or more Appraisals with respect to any Mortgage Loan
(together with any other Mortgage Loan cross-collateralized with such Mortgage
Loan) (or any Serviced Whole Loan) with an outstanding principal balance equal
to or in excess of $2,000,000 (the costs of which shall be paid by the Master
Servicer as an Advance) or (2) by an internal valuation performed by the Special
Servicer with respect to any Mortgage Loan (together with any other Mortgage
Loan cross-collateralized with such Mortgage Loan) (or any Serviced Whole Loan)
with an outstanding principal balance less than $2,000,000, minus, with respect
to any Appraisals, such downward adjustments as the Special Servicer may make
(without implying any obligation to do so) based upon its review of the
Appraisal and any other information it deems relevant and (B) all escrows,
letters of credit and reserves in respect of such Mortgage Loan (or a Serviced
Whole Loan) as of the date of calculation over (ii) the sum of, as of the Due
Date occurring in the month of the date of determination, (A) to the extent not
previously advanced by the Master Servicer or the Trustee, all unpaid interest
due on such Mortgage Loan (or a Serviced Whole Loan) at a per annum rate equal
to its Mortgage Rate (and any accrued and unpaid interest on any related
Companion Loan), (B) all unreimbursed Advances and any Advances that were not
reimbursed out of collections on such Mortgage Loan or the related Companion
Loan (or a Serviced Whole Loan) and interest thereon at the Reimbursement Rate
in respect of such Mortgage Loan or Companion Loan (or a Serviced Whole Loan)
and (C) all currently due and unpaid real estate taxes, assessments, insurance
premiums, ground rents, unpaid Special Servicing Fees and all other amounts due
and unpaid with respect to such Mortgage Loan or Companion Loan (or Serviced
Whole Loan) (which taxes, premiums, ground rents and other amounts have not been
the subject of an Advance by the Master Servicer or the Trustee, as applicable);
provided, however, without limiting the Special Servicer's obligation to order
and obtain such Appraisal or perform such valuation, if the Special Servicer has
not obtained the Appraisal or performed such valuation, as applicable, referred
to above within 60 days of the Appraisal Reduction Event (or with respect to the
Appraisal Reduction Events set forth in clauses (i) and (vi) of the definition
of Appraisal Reduction Event, within 120 days or 90 days, respectively, after
the initial delinquency for the related Appraisal Reduction Event), the amount
of the Appraisal Reduction shall be deemed to be an amount equal to 25% of the
current Stated Principal Balance of the related Mortgage Loan (or the Serviced
Whole Loan) until such time as such appraisal or valuation referred to above is
received and the Appraisal Reduction is calculated. Within 60 days after the
Appraisal Reduction Event, the Special Servicer shall order and receive an
Appraisal (the cost of which shall be paid by the Master Servicer as a Servicing
Advance); provided, however, that with respect to an Appraisal Reduction Event
as set forth in clause (i) of the definition of Appraisal Reduction Event, the
Special Servicer shall order and receive such Appraisal within the 120-day
period set forth in such clause (i), which Appraisal shall be delivered by the
Special Servicer to the Master Servicer, the Directing Certificateholder, the
Paying Agent and the Trustee.
With respect to each Mortgage Loan (other than a Non-Serviced
Mortgage Loan) and with respect to a Serviced Whole Loan as to which an
Appraisal Reduction has occurred (unless such Mortgage Loan or Serviced Whole
Loan has become a Corrected Mortgage Loan (for such purposes taking into account
any amendment or modification of such Mortgage Loan, any related Companion Loan
or any Serviced Whole Loan)), the Special Servicer shall, within thirty (30)
days of each anniversary of the related Appraisal Reduction Event, order an
Appraisal (which may be an update of a prior Appraisal), the cost of which shall
be paid by the Master Servicer as a Servicing Advance and to the extent it would
be a Nonrecoverable Advance, a Trust expense, or conduct an internal valuation,
as applicable and, promptly following receipt of any such Appraisal or
performance of such valuation, shall deliver a copy thereof to the Master
Servicer, the Directing Certificateholder, the Paying Agent and the Trustee.
Based upon such Appraisal or internal valuation of the Special Servicer, the
Special Servicer shall redetermine (in consultation with the Directing
Certificateholder) and report to the Directing Certificateholder (and, in the
case of a Serviced Whole Loan, the related Serviced Whole Loan Controlling
Holder), the Master Servicer, the Paying Agent and the Trustee the amount and
calculation of the Appraisal Reduction with respect to such Mortgage Loan and
Companion Loan or such Serviced Whole Loan, as applicable, and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect to
such Mortgage Loan and Companion Loan or the Serviced Whole Loan, as applicable.
The Directing Certificateholder shall have ten (10) Business Days to review each
calculation of an Appraisal Reduction; provided, however, that if the Directing
Certificateholder fails to approve or disapprove any calculation of the
Appraisal Reduction within ten (10) Business Days of receipt of the Appraisal
Reduction, such consent shall be deemed given. Notwithstanding the foregoing,
the Special Servicer will not be required to obtain an Appraisal or conduct an
internal valuation, as applicable, with respect to a Mortgage Loan, any related
Companion Loan or any Serviced Whole Loan as to which an Appraisal Reduction
Event has occurred to the extent the Special Servicer has obtained an Appraisal
or conducted such a valuation (in accordance with requirements of this
Agreement), as applicable, with respect to the related Mortgaged Property within
the twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan, any related Companion Loan or any Serviced Whole Loan;
provided that the Special Servicer is not aware of any material change to the
related Mortgaged Property having occurred and affecting the validity of such
Appraisal or valuation, as applicable.
Any Appraisal Reduction in respect of a Non-Serviced Whole Loan
shall be calculated by the applicable Non-Serviced Master Servicer in accordance
with and pursuant to the terms of the applicable Non-Serviced Pooling Agreement.
Any Mortgage Loan, any related Companion Loan and any Serviced Whole Loan, as
applicable, previously subject to an Appraisal Reduction, which Mortgage Loan,
any related Companion Loan and any Serviced Whole Loan, as applicable, has
become a Corrected Mortgage Loan (for such purposes taking into account any
amendment or modification of such Mortgage Loan, any related Companion Loan and
any Serviced Whole Loan, as applicable), and with respect to which no other
Appraisal Reduction Event has occurred and is continuing, will no longer be
subject to an Appraisal Reduction. Any Appraisal Reduction for a Serviced Whole
Loan shall be allocated in accordance with the related Intercreditor Agreement,
first, to the related Serviced Subordinate Companion Loan, if applicable, and,
second, to the related Serviced Mortgage Loan and each Serviced Pari Passu
Companion Loan, pro rata, according to their respective Stated Principal
Balances.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date on which such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than a Non-Serviced Mortgage Loan) or Companion Loan, the earliest of (i)
120 days after an uncured delinquency (without regard to the application of any
grace period) occurs in respect of such Mortgage Loan or Companion Loan, as
applicable, (ii) the date on which a reduction in the amount of Monthly Payments
on such Mortgage Loan or Companion Loan, as applicable, or a change in any other
material economic term of such Mortgage Loan or Companion Loan, as applicable
(other than an extension of the Maturity Date), becomes effective as a result of
a modification of such Mortgage Loan or Companion Loan, as applicable, by the
Special Servicer, (iii) the date on which a receiver has been appointed, (iv) 60
days after a Mortgagor declares bankruptcy, (v) 60 days after the date on which
an involuntary petition of bankruptcy is filed with respect to a Mortgagor if
not dismissed within such time, (vi) 90 days after an uncured delinquency occurs
in respect of a Balloon Payment with respect to such Mortgage Loan or Companion
Loan, as applicable, except where a refinancing is anticipated within 120 days
after the Maturity Date of the Mortgage Loan or Companion Loan, as applicable,
in which case 120 days after such uncured delinquency, and (vii) immediately
after such Mortgage Loan or Companion Loan, as applicable, becomes an REO Loan;
provided, however, that an Appraisal Reduction Event shall not occur at any time
when the aggregate Certificate Balances of all Classes of Certificates (other
than the Class A Certificates) have been reduced to zero. The Special Servicer
shall notify the Master Servicer, or the Master Servicer shall notify the
Special Servicer, as applicable, promptly upon such Person having notice or
knowledge of the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property (other
than a Non-Serviced Mortgaged Property), the appraised value thereof as
determined by an Appraisal of the Mortgaged Property securing the related
Mortgage Loan or Serviced Whole Loan, as applicable, and with respect to a
Non-Serviced Mortgaged Property, the appraised value allocable thereto, as
determined pursuant to the Non-Serviced Pooling Agreement.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans (and in the
case of a Non-Serviced Mortgage Loan, only to the extent received by the
Trust pursuant to the Non-Serviced Intercreditor Agreement) on deposit in
the Certificate Account (exclusive of any Net Investment Earnings
contained therein and exclusive of any amount on deposit in or credited to
any portion of the Certificate Account that is held for the benefit of the
Companion Holders) and the Lower-Tier Distribution Account (without regard
to any payments made to or received from the Swap Counterparty) as of the
close of business on the related P&I Advance Date, exclusive of (without
duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period, excluding
interest related to payments prior to, but due after, the Cut-off
Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) through
(vii), inclusive, of Section 3.05(b);
(v) [Reserved];
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account, the
Lower-Tier Distribution Account and, without duplication, the REO
Account in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year (in each case, unless the related
Distribution Date is the final Distribution Date), an amount equal
to one day of interest on the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage Rate to
the extent such amounts are Withheld Amounts;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to the Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in March (or February, if
the related Distribution Date is the final Distribution Date), the
Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant
to Section 3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Xxxxxxx Park Retail Intercreditor Agreement": That certain
Intercreditor Agreement dated as of September 14, 2007, by and between CIBC
Inc., as Senior Lender, and Bear Xxxxxxx Commercial Mortgage, Inc., as Mezzanine
Lender, as the same may be further amended in accordance with the terms thereof.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A-1, Class A-2, Class X-0,
Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K Certificate and the
Class A-MFL Regular Interest, a fraction (a) whose numerator is the greater of
(x) zero and (y) the amount by which (i) the Pass-Through Rate on such Class of
Certificates or the Class A-MFL Regular Interest, as applicable, exceeds (ii)
the discount rate used in accordance with the related Mortgage Loan documents in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount by which (i) the Mortgage
Rate on such Mortgage Loan exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. The Master Servicer shall provide to the
Paying Agent the discount rate references above for purposes of calculating the
Base Interest Fraction.
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer therefor and the proceeds of any bid pursuant to Section 7.01(c),
the amount of such proceeds (net of any expenses incurred in connection with
such bid and the transfer of servicing), multiplied by a fraction equal to (a)
the Servicing Fee Amount for the Master Servicer or such Sub-Servicer therefor,
as the case may be, as of such date of determination, over (b) the aggregate of
the Servicing Fee Amounts for the Master Servicer and all Sub-Servicers therefor
as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Pittsburgh, Pennsylvania,
Minneapolis, Minnesota, Columbia, Maryland, Miami Beach, Florida or the city and
state in which the Corporate Trust Office of the Trustee, or the principal place
of business or principal commercial mortgage loan servicing office of the Master
Servicer, the Paying Agent or the Special Servicer is located, are authorized or
obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc., as Master Servicer, on behalf of Xxxxx
Fargo Bank, N.A., as Trustee, in trust for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20, Certificate Account." Any such
account or accounts shall be an Eligible Account. Subject to the related
Intercreditor Agreement and taking into account that each Companion Loan is
subordinate or pari passu, as applicable, to the related Serviced Mortgage Loan
and, if applicable, Serviced Pari Passu Companion Loan to the extent set forth
in the related Intercreditor Agreement, the subaccount described in the second
paragraph of Section 3.04(b) that is part of the Certificate Account shall be
for the benefit of the related Companion Holder, to the extent funds on deposit
in such subaccount are attributed to such Companion Loan and shall not be an
asset of the Trust Fund or the Upper-Tier REMIC or Lower-Tier REMIC formed
hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates) and the
Class A-MFL Regular Interest, (i) on or prior to the first Distribution Date, an
amount equal to the Original Certificate Balance of such Class as specified in
the Preliminary Statement hereto, and (ii) as of any date of determination after
the first Distribution Date, the Certificate Balance of such Class of
Certificates or the Class A-MFL Regular Interest on the Distribution Date
immediately prior to such date of determination (determined as adjusted pursuant
to Section 1.02(iii)). The Certificate Balance (including the Original
Certificate Balance) of the Class A-MFL Certificates shall be equal at all times
to the Certificate Balance of the Class A-MFL Regular Interest.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class A-MFL, Class X and
Class R Certificates) and the Class A-MFL Regular Interest, the amount of
Mortgage Deferred Interest allocated to such Class of Certificates or the Class
A-MFL Regular Interest, as applicable, pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Master Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Depositor, or any
Mortgage Loan Seller or any Affiliate thereof shall be deemed not to be
outstanding, and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver has been obtained, if
such consent, approval or waiver sought from such party would in any way
increase its compensation or limit its obligations as Master Servicer, Special
Servicer, Depositor or Trustee, as applicable, hereunder; provided, however, so
long as there is no Event of Default with respect to the Master Servicer or the
Special Servicer, the Master Servicer and the Special Servicer or such Affiliate
of either shall be entitled to exercise such Voting Rights with respect to any
issue which could reasonably be believed to adversely affect such party's
compensation or increase its obligations or liabilities hereunder; and provided,
further, however, that such restrictions shall not apply to the exercise of the
Special Servicer's rights (or the Master Servicer's or any Mortgage Loan
Seller's rights, if any) or any of their Affiliates as a member of the
Controlling Class. The Trustee and the Paying Agent shall each be entitled to
request and rely upon a certificate of the Master Servicer, the Special Servicer
or the Depositor in determining whether a Certificate is registered in the name
of an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer": As defined in Section 11.09.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-4, Class A-SB and Class A-1A Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.2730%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-6 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of (i) 5.7460% and (ii) the Weighted
Average Net Mortgage Rate.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.6290%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.8190%.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-4 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to the lesser of (i) 5.7940% and (ii) the
Weighted Average Net Mortgage Rate.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.1000%.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-8 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.2970%.
"Class A-MFL Available Funds": With respect to any Distribution
Date, the sum of (i) the total amount of all principal and/or interest
distributions on or in respect of the Class A-MFL Regular Interest with respect
to such Distribution Date and (ii) the amounts, if any, received from the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date, less
(iii) all amounts (exclusive of any Yield Maintenance Charges allocated in
respect of the Class A-MFL Regular Interest) required to be paid to the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date.
"Class A-MFL Certificate": A Certificate designated as "Class A-MFL"
on the face thereof, in the form of Exhibit A-9 hereto, and evidencing an
undivided beneficial interest in the portion of the Grantor Trust consisting of
the Class A-MFL Regular Interest, the Floating Rate Account, the Swap Contract
and the proceeds thereof.
"Class A-MFL Distribution Conversion": With respect to any
Distribution Date (i) during the continuation of a Swap Default while the
Trustee is pursuing remedies under the Swap Contract pursuant to Section 3.32 or
(ii) following the termination of the Swap Contract, the conversion of
distributions to the Class A-MFL Certificates from distributions based, in part,
on interest payments from the Swap Counterparty under the Swap Contract to
distributions based solely on distributions in respect of the Class A-MFL
Regular Interest, as specified in Section 4.01(k).
"Class A-MFL Fixed Swap Payment": With respect to any Distribution
Date, the amount required to be paid to the Swap Counterparty by the Trust under
the Swap Contract.
"Class A-MFL Floating Swap Payment": With respect to any
Distribution Date, the amount required to be paid to the Trust by the Swap
Counterparty under the Swap Contract.
"Class A-MFL Interest Distribution Amount": With respect to any
Distribution Date, the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-MFL Pass-Through Rate applicable for such
Distribution Date on the Certificate Balance outstanding immediately prior to
such Distribution Date of such Class and (b) to the extent not previously paid,
amounts of interest distributable on the Class A-MFL Certificates for all
previous Distribution Dates.
"Class A-MFL Net Swap Payment": With respect to the related Interest
Accrual Period, the excess, if any of (i) the Class A-MFL Fixed Swap Payment,
over (ii) the Class A-MFL Floating Swap Payment.
"Class A-MFL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-MFL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.6000% and with respect to any
Distribution Date on which a Class A-MFL Distribution Conversion has occurred
and is continuing, a per annum rate equal to the Class A-MFL Regular Interest
Pass-Through Rate.
"Class A-MFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-MFL Regular Interest on such
Distribution Date.
"Class A-MFL Regular Interest": The uncertificated interest
corresponding to the Class A-MFL Certificates and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-MFL Regular Interest Distribution Amount": With respect to
any Distribution Date, the aggregate distributions on the Class A-MFL Regular
Interest pursuant to this Agreement, including, but not limited to, any payments
of interest, principal, Yield Maintenance Charges and/or reimbursements.
"Class A-MFL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the lesser of (i) 5.9300% and
(ii) the Weighted Average Net Mortgage Rate.
"Class A-SB Certificate": A Certificate designated as "Class A-SB"
on the face thereof, in the form of Exhibit A-5 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-SB Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.6880%.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the planned principal amount for such Distribution Date
specified in Schedule 4 hereto relating to the Class A-SB Certificates.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.0810%.
"Class LA-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-8 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-9 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-10 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-11 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-12 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-13 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-14 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-15 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-8 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-9 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-MFL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-27 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class LT Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.0810%.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-23 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.0810%.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-27 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.0810%.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-24 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.0810%.
"Class Q Certificate": A Certificate designated as "Class Q" on the
face thereof, in the form of Exhibit A-25 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Q Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.0810%.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-28 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class T Certificate": A Certificate designated as "Class T" on the
face thereof, in the form of Exhibit A-26 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class T Pass-Through Rate": With respect to any Distribution Date,
a fixed per annum rate equal to 5.0810%.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates (other than the Class A-MFL Certificates) or the Class
A-MFL Regular Interest, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class of Certificates or
the Class A-MFL Regular Interest, as applicable, for the immediately preceding
Distribution Date and (ii) any outstanding Class Unpaid Interest Shortfall
payable to such Class of Certificates or the Class A-MFL Regular Interest, as
applicable, on such preceding Distribution Date over (b) the aggregate amount in
respect of interest actually distributed to such Class of Certificates or the
Class A-MFL Regular Interest, as applicable, on such immediately preceding
Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class
of Certificates or the Class A-MFL Regular Interest as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X Reference Rate": With respect to any Distribution Date, the
rate for such Distribution Date specified in Schedule 3 hereto.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Class of the
Components (other than those Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date) for any Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates and (B) with respect to any
Components that are Class X-2 Components which have not yet reached their Class
X-2 Component Crossover Date (i) for any Distribution Date occurring on or
before the Class X-2 Termination Date, (x) the Weighted Average Net Mortgage
Rate for such Distribution Date minus (y)(1) with respect to Component XA-M and
Component XA-J, the sum of (I) the Class X-2 Strip Rate for the applicable Class
X-2 Component and (II) the Pass-Through Rate for the Related Certificates for
such Distribution Date and (2) for each other Class X-2 Component, the greater
of (I) the Class X Reference Rate for such Distribution Date and (II) the
Pass-Through Rate for the Related Certificate for such Distribution Date, and
(ii) for any Distribution Date occurring after the Class X-2 Termination Date, a
rate per annum equal to (x) the Weighted Average Net Mortgage Rate for such
Distribution Date, minus (y) the Pass-Through Rate for the Related Certificates
for such Distribution Date; provided, that in no event shall any Class X-1 Strip
Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Component Crossover Date": With respect to each Class X-2
Component, the related Crossover Date as set forth in the table below:
Class X-2 Component Component Crossover Date
------------------------------------------------------------- ------------------------------------
Components XA-2-2 and XA-1-A-2 March 2008 Distribution Date
Components XX-0-0, XX-0-0, XX-0X-0 and XNR-2 September 2008 Distribution Date
Components XX-0-0, XX-0X-0, XX-0, XQ, XT and XNR-3 March 2009 Distribution Date
Components XX-0-0, XX-0X-0, XX-0, XN and XP-2 September 2009 Distribution Date
Components XX-0-0, XX-0X-0, XX-0 and XM-2 March 2010 Distribution Date
Components XX-0-0, XX-0-0, XX-0X-0, XX-0 and XL-2 September 2010 Distribution Date
Components XX-0-0, XX-0X-0, XX-0 and XK-2 March 2011 Distribution Date
Components XX-0-0, XX-XX-0, XX-0X-0 and XJ-2 September 2011 Distribution Date
Components XX-0-0, XX-XX-0, XX-0X-00, XX-0 and XJ-3 March 2012 Distribution Date
Components XX-0-0, XX-XX-0, XX-0X-00, XX-0 and XH-2 September 2012 Distribution Date
Components XX-0-0, XX-XX-0, XX-0X-00 and XG-2 March 2013 Distribution Date
Components XX-0-0, XX-XX-0, XX-0X-00, XX-0xxx XX-0 September 2013 Distribution Date
Components XX-0-0, XX-XX-0, XX-0X-00, XX-0 and XF-2 March 2014 Distribution Date
Components XX-0-0, XX-XX-0, XX-0X-00, XA-M, XA-MFL, September 2014 Distribution Date
XA-J, XB, XC, XD and XE-2
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-3-5, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-7,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5, Component XX-XX-0,
Xxxxxxxxx XX-XX-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13, Component XA-1A-14, Component XA-1A-15, Component XA-M,
Component XA-MFL, Component XA-J, Component XB, Component XC, Component XD,
Component XE-1, Component XE-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Component XG-2, Component XG-3, Component XH-1, Component XH-2, Component XJ-1,
Component XJ-2, Component XJ-3, Component XK-1, Component XK-2, Component XL-1,
Component XL-2, Component XM-1, Component XM-2, Component XN, Component XP-1,
Component XP-2, Component XQ, Component XT, Component XNR-2 and Component XNR-3.
"Class X-2 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of the Class X-2 Components,
excluding those Class X-2 Components for which the Class X-2 Component Crossover
Date has previously passed.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Strip Rate": With respect to each Class X-2 Component for
any Distribution Date, a rate per annum equal to (i) for any Distribution Date
occurring on or before the Class X-2 Termination Date, (A) with respect to
Component XA-M, the lesser of (1) 0.2670% and (2) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class A-M Certificates, (B) with respect to
Component XA-J, the lesser of (1) 0.0700% and (2) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class A-J Certificates, and (C) with respect
to each other Class X-2 Component, (1) the lesser of (I) the Weighted Average
Net Mortgage Rate for such Distribution Date and (II) the Class X Reference Rate
for such Distribution Date, minus (2) the Pass-Through Rate for the Related
Certificates (provided, that in no event shall any Class X-2 Strip Rate be less
than zero) and (ii) for any Distribution Date occurring after the Class X-2
Termination Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in September
2014.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": September 28, 2007.
"Closing Date Deposit Amount": $800,339.58 representing the
aggregate amount of interest that would have accrued on the related Stated
Principal Balance at the related Mortgage Rates during the Due Period ending in
October 2007, for those Mortgage Loans that do not have their first Monthly
Payment due until November 2007.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Paying Agent,
the Master Servicer, the Special Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally as is reasonably
acceptable to the Master Servicer and the Special Servicer.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Paying Agent.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, as is reasonably acceptable to the Paying Agent, the Trustee, the
Master Servicer and the Special Servicer.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) CMSA Servicer Watch List, (2) CMSA Delinquent Loan
Status Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (6) CMSA Operating Statement Analysis Report, (7) CMSA NOI Adjustment
Worksheet, (8) CMSA Loan Level Reserve/LOC Report, (9) CMSA Reconciliation of
Funds Report) and (10) in connection with Mortgage Loans that have Companion
Loans, the CMSA Total Loan Report. In addition, the CMSA Investor Reporting
Package shall include the CMSA Advance Recovery Report and the CMSA Realized
Loss Report. The CMSA IRP shall be substantially in the form of, and containing
the information called for in, the downloadable forms of the "CMSA IRP"
available as of the Closing Date on the CMSA website, or such other form for the
presentation of such information and containing such additional information or
reports as may from time to time be approved by the CMSA for commercial mortgage
backed securities transaction generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA IRP" available as of the Closing Date on the CMSA website, as is
reasonably acceptable to the Master Servicer, the Special Servicer, the Trustee
and the Paying Agent. For the purposes of the production of the CMSA Comparative
Financial Status Report by the Master Servicer or the Special Servicer of any
such report that is required to state information for any period prior to the
Cut-off Date, the Master Servicer or the Special Servicer, as the case may be,
may conclusively rely (without independent verification), absent manifest error,
on information provided to it by the Mortgage Loan Sellers or by the related
Mortgagor or (x) in the case of such a report produced by the Master Servicer,
by the Special Servicer (if other than the Master Servicer or an Affiliate
thereof) and (y) in the case of such a report produced by the Special Servicer,
by the Master Servicer (if other than the Special Servicer or an Affiliate
thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicer,
the Paying Agent and the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer and the Paying Agent.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Operating Statement
Analysis Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be.
"CMSA Servicer Watch List and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non-Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Servicer Watch List" format
substantially in the form of and containing the information called for therein
for the Mortgage Loans, or such other form (including other portfolio review
guidelines) for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Servicer Watch List"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"CMSA Total Loan Report": A monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Total Loan Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be adopted by the CMSA for
commercial mortgage-backed securities transactions and is reasonably acceptable
to the Master Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"COMM 2007-C9 Pooling Agreement": The pooling and servicing
agreement, dated as of August 1, 2007, among Deutsche Mortgage & Asset Receiving
Corporation, as depositor, KeyCorp Real Estate Capital Markets, Inc., as a
master servicer, Capmark Finance Inc., as a master servicer, LNR Partners, Inc.,
as special servicer and Xxxxx Fargo Bank, N.A., as trustee, as from time to time
amended, supplemented or modified relating to the issuance of the COMM 2007-C9
Commercial Mortgage Pass-Through Certificates, or any successor pooling and
servicing agreement entered into pursuant to the USFS Industrial Distribution
Portfolio Intercreditor Agreement.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to each Serviced
Companion Loan, the separate account created and maintained by the Companion
Paying Agent pursuant to Section 3.04(b) and held on behalf of the Companion
Holders, which shall be entitled "Midland Loan Services, Inc., as Companion
Paying Agent for the Companion Holders of the Companion Loans, relating to the
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC20, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC20." The Companion
Distribution Account shall not be an asset of the Trust Fund, the Lower-Tier
REMIC or the Upper-Tier REMIC, but instead shall be held by the Companion Paying
Agent on behalf of the Companion Holders. Any such account shall be an Eligible
Account. Notwithstanding the foregoing, if the Master Servicer and the Companion
Paying Agent are the same entity, the Companion Distribution Account may be the
subaccount referenced in the second paragraph of Section 3.04(b).
"Companion Holder": Each of the holders of record of the Companion
Loans.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": With respect to the Serviced Companion
Loans, the Master Servicer in its role as Companion Paying Agent appointed
pursuant to Section 3.30.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls incurred in connection
with voluntary principal prepayments received in respect of the Mortgage Loans
for the related Distribution Date (other than a Specially Serviced Mortgage Loan
or a Mortgage Loan on which the Special Servicer allowed a prepayment on a date
other than the applicable Due Date) and (ii) the aggregate of (A) that portion
of the Master Servicer's Servicing Fees for such Distribution Date that is, in
the case of each and every Mortgage Loan and REO Loan for which such Servicing
Fees are being paid for such Due Period, calculated at 0.01% per annum, and (B)
all Prepayment Interest Excesses received in respect of the Mortgage Loans for
the related Distribution Date and (C) to the extent earned solely on principal
prepayments, Net Investment Earnings received by the Master Servicer during such
Due Period with respect to the Mortgage Loans and related Companion Loan related
to such Prepayment Interest Shortfalls. However, if a Prepayment Interest
Shortfall occurs as a result of the Master Servicer's allowing the related
Mortgagor to deviate from the terms of the related Mortgage Loan documents
regarding Principal Prepayments (other than (X) subsequent to a default under
the related Mortgage Loan documents, (Y) pursuant to applicable law or a court
order, or (Z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (1) all Servicing Fees with respect to the Master Servicer
for such Due Period, (2) all Prepayment Interest Excesses with respect to the
Master Servicer and (3) to the extent earned solely on Principal Prepayments,
Net Investment Earnings received by the Master Servicer during such Due Period
with respect to the Mortgage Loan subject to such Principal Prepayment. In no
event will the rights of the Certificateholders to offset the aggregate
Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-2-3, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0,
Component XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XX-XX-0, Xxxxxxxxx XX-XX-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10,
Component XA-1A-11, Component XA-1A-12, Component XA-1A-13, Component XA-1A-14,
Component XA-1A-15, Component XA-M, Component XA-MFL, Component XA-J, Component
XB, Component XC, Component XD, Component XE-1, Component XE-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2, Component XG-3, Component XH-1,
Component XH-2, Component XJ-1, Component XJ-2, Component XJ-3, Component XK-1,
Component XK-2, Component XL-1, Component XL-2, Component XM-1, Component XM-2,
Component XN, Component XP-1, Component XP-2, Component XQ, Component XT,
Component XXX-0, Xxxxxxxxx XXX-0 and Component XNR-3.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1": One of the 72 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1 Uncertificated Interest as of any
date of determination.
"Component XA-1A-1": One of the 72 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A-1 Uncertificated Interest as of
any date of determination.
"Component XA-1A-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-2 Uncertificated Interest as of any date of determination.
"Component XA-1A-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-3 Uncertificated Interest as of any date of determination.
"Component XA-1A-4": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-5": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-5 Uncertificated Interest as of any date of determination.
"Component XA-1A-6": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-6 Uncertificated Interest as of any date of determination.
"Component XA-1A-7": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-7 Uncertificated Interest as of any date of determination.
"Component XA-1A-8": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-8 Uncertificated Interest as of any date of determination.
"Component XA-1A-9": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-9 Uncertificated Interest as of any date of determination.
"Component XA-1A-10": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-10 Uncertificated Interest as of any date of determination.
"Component XA-1A-11": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-11 Uncertificated Interest as of any date of determination.
"Component XA-1A-12": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-12 Uncertificated Interest as of any date of determination.
"Component XA-1A-13": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-13 Uncertificated Interest as of any date of determination.
"Component XA-1A-14": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-14 Uncertificated Interest as of any date of determination.
"Component XA-1A-15": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-15 Uncertificated Interest as of any date of determination.
"Component XA-2-1": One of the 72 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-1 Uncertificated Interest as of
any date of determination.
"Component XA-2-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-2 Uncertificated Interest as of any date of determination.
"Component XA-2-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-3 Uncertificated Interest as of any date of determination.
"Component XA-3-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-1 Uncertificated Interest as of any date of determination.
"Component XA-3-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-2 Uncertificated Interest as of any date of determination.
"Component XA-3-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-3 Uncertificated Interest as of any date of determination.
"Component XA-3-4": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-4 Uncertificated Interest as of any date of determination.
"Component XA-3-5": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-5 Uncertificated Interest as of any date of determination.
"Component XA-4-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-1 Uncertificated Interest as of any date of determination.
"Component XA-4-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-2 Uncertificated Interest as of any date of determination.
"Component XA-4-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-3 Uncertificated Interest as of any date of determination.
"Component XA-4-4": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-4 Uncertificated Interest as of any date of determination.
"Component XA-4-5": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-5 Uncertificated Interest as of any date of determination.
"Component XA-4-6": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-6 Uncertificated Interest as of any date of determination.
"Component XA-4-7": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-7 Uncertificated Interest as of any date of determination.
"Component XA-4-8": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-8 Uncertificated Interest as of any date of determination.
"Component XA-4-9": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-9 Uncertificated Interest as of any date of determination.
"Component XA-J": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-J Uncertificated Interest as of any date of determination.
"Component XA-M": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-M Uncertificated Interest as of any date of determination.
"Component XA-MFL": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-MFL Uncertificated Interest as of any date of determination.
"Component XA-SB-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-1 Uncertificated Interest as of any date of determination.
"Component XA-SB-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-2 Uncertificated Interest as of any date of determination.
"Component XA-SB-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-3 Uncertificated Interest as of any date of determination.
"Component XA-SB-4": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-4 Uncertificated Interest as of any date of determination.
"Component XA-SB-5": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-5 Uncertificated Interest as of any date of determination.
"Component XA-SB-6": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-6 Uncertificated Interest as of any date of determination.
"Component XA-SB-7": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-7 Uncertificated Interest as of any date of determination.
"Component XB": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LB Uncertificated Interest as of any date of determination.
"Component XC": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LC Uncertificated Interest as of any date of determination.
"Component XD": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD Uncertificated Interest as of any date of determination.
"Component XE-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE-1 Uncertificated Interest as of any date of determination.
"Component XE-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE-2 Uncertificated Interest as of any date of determination.
"Component XF-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-1 Uncertificated Interest as of any date of determination.
"Component XF-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-2 Uncertificated Interest as of any date of determination.
"Component XG-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-1 Uncertificated Interest as of any date of determination.
"Component XG-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-2 Uncertificated Interest as of any date of determination.
"Component XG-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LG-3 Uncertificated Interest as of any date of determination.
"Component XH-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-1 Uncertificated Interest as of any date of determination.
"Component XH-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-2 Uncertificated Interest as of any date of determination.
"Component XJ-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-1 Uncertificated Interest as of any date of determination.
"Component XJ-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-2 Uncertificated Interest as of any date of determination.
"Component XJ-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-3 Uncertificated Interest as of any date of determination.
"Component XK-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-1 Uncertificated Interest as of any date of determination.
"Component XK-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-2 Uncertificated Interest as of any date of determination.
Component XL-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-1 Uncertificated Interest as of any date of determination.
Component XL-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-2 Uncertificated Interest as of any date of determination.
"Component XM-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LM-1 Uncertificated Interest as of any date of determination.
"Component XM-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LM-2 Uncertificated Interest as of any date of determination.
"Component XN": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LN Uncertificated Interest as of any date of determination.
"Component XNR-1": One of the 72 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR-1 Uncertificated Interest as of any
date of determination.
"Component XNR-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LNR-2 Uncertificated Interest as of any date of determination.
"Component XNR-3": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LNR-3 Uncertificated Interest as of any date of determination.
"Component XP-1": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LP-1 Uncertificated Interest as of any date of determination.
"Component XP-2": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LP-2 Uncertificated Interest as of any date of determination.
"Component XQ": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LQ Uncertificated Interest as of any date of determination.
"Component XT": One of the 72 components of the Class X-1
Certificates and one of the 68 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LT Uncertificated Interest as of any date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The corporate trust office of the Trustee
and the Paying Agent at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located (i) with respect to
Certificate transfers and surrenders, at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000 and (ii) for all other purposes, at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services
(CMBS), X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC20,
telecopy number (000) 000-0000.
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the Master Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four most
recent calendar quarters preceding the repurchase or substitution shall not be
less than the greater of (a) the weighted average Debt Service Coverage Ratio
for all such related Crossed Loans, including the affected Crossed Loan, for the
four most recent calendar quarters preceding the repurchase or substitution, and
(b) 1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller shall not be greater than the lesser of (a) the weighted
average LTV Ratio for all such related Crossed Loans, including the affected
Crossed Loan, determined as of the Cut-off Date based upon an Appraisal obtained
by the Special Servicer at the expense of the related Mortgage Loan Seller and
(b) 75%, (iii) the Mortgage Loan Seller, at its expense, shall have furnished
the Trustee with an Opinion of Counsel that any modification relating to the
repurchase or substitution of a Crossed Loan shall not cause an Adverse REMIC
Event, (iv) the related Mortgage Loan Seller causes the affected Crossed Loan to
become not cross-collateralized and cross-defaulted with the remaining related
Crossed Loans prior to such repurchase or substitution or otherwise forbears
from exercising enforcement rights against the Primary Collateral of any Crossed
Loan remaining in the Trust Fund and (v) the Directing Certificateholder shall
have consented to the repurchase or substitution of the affected Crossed Loan,
which consent shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in September 2007, or, September 1, 2007, with respect
to those Mortgage Loans that were originated in August 2007 and have their first
Due Date in October 2007, or, with respect to those mortgage loans that were
originated in September 2007 and have their first Due Date in either October
2007 or November 2007, the origination date.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the Master Servicer or Special Servicer
has, by written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt,
a defaulted Companion Loan does not constitute a "Defaulted Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(k).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The initial Directing
Certificateholder shall be Centerline REIT, Inc. Thereafter, the Directing
Certificateholder shall be the Controlling Class Certificateholder (or a
representative thereof) identified to the Master Servicer, the Special Servicer,
and the Trustee and the Paying Agent selected by more than 50% of the
Controlling Class Certificateholders, by Certificate Balance, as certified by
the Certificate Registrar from time to time; provided, however, that (i) absent
such selection, or (ii) until a Directing Certificateholder is so selected or
(iii) upon receipt of a notice from a majority of the Controlling Class
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer designated, the Controlling Class Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class will be the
Directing Certificateholder.
"Directly Operate": With respect to any REO Property (except with
respect to a Non-Serviced Mortgaged Property), the furnishing or rendering of
services to the tenants thereof, that are not customarily provided to tenants in
connection with the rental of space "for occupancy only" within the meaning of
Treasury Regulations Section 1.512(b)-1(c)(5), the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the use of such REO Property in a trade or business conducted by the
Trust Fund or on behalf of a Companion Holder or the performance of any
construction work on the REO Property (other than the completion of a building
or improvement, where more than 10% of the construction of such building or
improvement was completed before default became imminent), other than through an
Independent Contractor; provided, however, that an REO Property shall not be
considered to be Directly Operated solely because the Trustee (or the Special
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance or makes decisions
as to repairs or capital expenditures with respect to such REO Property or takes
other actions consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates (other than the Class
A-MFL Certificates) or the Class A-MFL Regular Interest, the Accrued Certificate
Interest in respect of such Class of Regular Certificates or the Class A-MFL
Regular Interest, as applicable, for such Distribution Date, reduced (to not
less than zero) by any allocations to such Class of Certificates (other than in
the case of the Class X Certificates) or the Class A-MFL Regular Interest, as
applicable, of (i) the product of (a) any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date, multiplied by (b) a fraction, expressed as
a decimal, the numerator of which is the Accrued Certificate Interest in respect
of such Class of Certificates or the Class A-MFL Regular Interest, as
applicable, for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates (other than the Class A-MFL Certificates and the Class X
Certificates) and the Class A-MFL Regular Interest for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class of Certificates or the Class A-MFL Regular Interest, as
applicable, pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Floating Rate Account, all
of which may be subaccounts of a single Eligible Account.
"Distribution Date": The 12th day of each month, or, if such 12th
day is not a Business Day, on the next succeeding Business Day, beginning in
October 2007.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan or Companion Loan occurring in the month
preceding the month in which such Distribution Date occurs or the date that
would have been the Due Date if the Mortgage Loan had a Due Date in October 2007
and ending on and including the Due Date for such Mortgage Loan or Companion
Loan occurring in the month in which such Distribution Date occurs.
Notwithstanding the foregoing, in the event that the last day of a Due Period
(or applicable grace period) is not a Business Day, any Monthly Payments
received with respect to the Mortgage Loans or Companion Loan relating to such
Due Period on the Business Day immediately following such day shall be deemed to
have been received during such Due Period and not during any other Due Period.
"XXXXX": As defined in Section 11.03.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), (A) the long-term unsecured debt obligations of
which are rated at least "A+" by S&P, if the deposits are to be held in such
account for 30 days or more, and the short-term debt obligations of which have a
short-term rating of not less than "A-1" by S&P, if the deposits are to be held
in such account for less than 30 days, (B) the long-term unsecured debt
obligations of which are rated at least "Aa3" by Moody's, if the deposits are to
be held in such account for 30 days or more, and the short-term debt obligations
of which have a short-term rating of not less than "P-1" from Moody's, if the
deposits are to be held in such account for less than 30 days, (C) the long term
unsecured debt obligations of which are rated at least "AA-" by Fitch, if the
deposits are to be held in such account for 30 days or more, and the short-term
debt obligations of which have a short-term rating of not less than "F-1" from
Fitch, if the deposits are to be held in such account for less than 30 days, (D)
an account or accounts maintained with PNC Bank, National Association so long as
PNC Bank, National Association's long term unsecured debt rating shall be at
least "A" from S&P and Fitch and "A-1" from Moody's (if the deposits are to be
held in the account for more than 30 days) or PNC Bank, National Association's
short term deposit or short term unsecured debt rating shall be at least "F-1"
from Fitch, "P-1" from Moody's and "A-1" from S&P (if the deposits are to be
held in the account for 30 days or less) and (E) such other account or accounts
with respect to which each of the Rating Agencies shall have confirmed in
writing that the then current rating assigned to any of the Certificates or any
Serviced Companion Loan Securities will not be qualified, downgraded or
withdrawn by reason thereof or (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 corporate
trust powers, acting in its fiduciary capacity, provided that any state
chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b).
Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Xxxxxxxxx Plaza A/B Intercreditor Agreement": That certain Amended
and Restated Intercreditor Agreement among the noteholders, dated as of October
12, 2006, by and among the holders of the Xxxxxxxxx Plaza Companion Loans and
the holder of the Xxxxxxxxx Plaza Mortgage Loan, relating to the relative rights
of such holders of the Xxxxxxxxx Plaza Whole Loan, as the same may be further
amended in accordance with the terms thereof.
"Xxxxxxxxx Plaza Companion Loans": Collectively, the Xxxxxxxxx Plaza
Pari Passu Companion Loan and the Xxxxxxxxx Plaza Subordinate Companion Loan.
"Xxxxxxxxx Plaza Companion Notes": Collectively, the Xxxxxxxxx Plaza
Pari Passu Companion Loan and the Xxxxxxxxx Plaza Subordinate Companion Loan.
"Xxxxxxxxx Plaza Intercreditor Agreements": Collectively, the
Xxxxxxxxx Plaza Pari Passu Intercreditor Agreement and the Xxxxxxxxx Plaza A/B
Intercreditor Agreement.
"Xxxxxxxxx Plaza Majority Holder": With respect to the Xxxxxxxxx
Plaza Whole Loan, the holder of the Xxxxxxxxx Plaza Pari Passu Companion Loan or
the holder of the Xxxxxxxxx Plaza Subordinate Companion Loan, as the case may
be.
"Xxxxxxxxx Plaza Mortgage Loan": With respect to the Xxxxxxxxx Plaza
Whole Loan, the Mortgage Loan that is included in the Trust (identified as
Mortgage Loan No. 28 on the Mortgage Loan Schedule), which is designated as
promissory note A-1 and is pari passu in right of payment with the Xxxxxxxxx
Plaza Pari Passu Companion Loan and senior to the Xxxxxxxxx Plaza Subordinate
Companion Loan to the extent set forth in the Xxxxxxxxx Plaza Intercreditor
Agreements.
"Xxxxxxxxx Plaza Mortgaged Property": The Mortgaged Property that
secures the Xxxxxxxxx Plaza Whole Loan.
"Xxxxxxxxx Plaza Notes": The Xxxxxxxxx Plaza Mortgage Loan, the
Xxxxxxxxx Plaza Pari Passu Companion Loan and the Xxxxxxxxx Plaza Subordinate
Companion Loan.
"Xxxxxxxxx Plaza Pari Passu Companion Loan": With respect to the
Xxxxxxxxx Plaza Whole Loan, the related promissory note made by the related
mortgagor and secured by the Mortgage on the Xxxxxxxxx Plaza Mortgaged Property
and designated as promissory note A-2, which is not included in the Trust and
which is pari passu in right of payment to the Xxxxxxxxx Plaza Mortgage Loan to
the extent set forth in the related Mortgage Loan documents and as provided in
the Xxxxxxxxx Plaza Intercreditor Agreements.
"Xxxxxxxxx Plaza Pari Passu Intercreditor Agreement": That certain
Amended and Restated Intercreditor Agreement among the noteholders, dated as of
October 12, 2006, by and among the holders of the Xxxxxxxxx Plaza Pari Passu
Companion Loan and the holder of the Xxxxxxxxx Plaza Mortgage Loan, relating to
the relative rights of such holders of the Xxxxxxxxx Plaza Whole Loan, as the
same may be further amended in accordance with the terms thereof.
"Xxxxxxxxx Plaza Subordinate Companion Loan": With respect to the
Xxxxxxxxx Plaza Whole Loan, the related promissory note made by the related
mortgagor and secured by the mortgage on the Xxxxxxxxx Plaza Mortgaged Property
and designated as promissory note B, which is not included in the Trust and
which is subordinate in right of payment to the Xxxxxxxxx Plaza Mortgage Loan to
the extent set forth in the related Mortgage Loan documents and as provided in
the Xxxxxxxxx Plaza Intercreditor Agreements.
"Xxxxxxxxx Plaza Whole Loan": The Xxxxxxxxx Plaza Mortgage Loan,
together with the Xxxxxxxxx Plaza Companion Loans, each of which is secured by
the same Mortgage on the Xxxxxxxxx Plaza Mortgaged Property. References herein
to the Xxxxxxxxx Plaza Whole Loan shall be construed to refer to the aggregate
indebtedness under the Xxxxxxxxx Plaza Mortgage Loan and the Xxxxxxxxx Plaza
Companion Loans.
"Environmental Assessment": An "environmental site assessment" as
such term is defined in, and meeting the criteria of, the American Society of
Testing Materials Standard Section E 1527-00, or any successor thereto.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class L, Class M, Class N, Class
P, Class Q, Class T or Class NR Certificate; provided that any such Certificate:
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer of such Certificate, either (i) it is
rated in one of the four highest generic ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would permit the transfer of such
Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations of the Commission thereunder.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FASB 140": The Financial Accounting Standards Board's Statement No.
140, entitled "Accounting for Transfers and Servicing of Financial Assets and
Extinguishment of Liabilities", issued in September 2002.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan (and, if
applicable, any defaulted Companion Loan) or REO Property (other than a Mortgage
Loan or REO Property, as the case may be, that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan
Purchase Agreement, the Controlling Class Option Holder, the Companion Holder or
the Special Servicer pursuant to Section 3.18(b), any mezzanine lender pursuant
to Section 3.18(e) or the Master Servicer, Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class LR Certificates pursuant to
Section 9.01) that there has been a recovery of all Insurance and Condemnation
Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries
that, in the Special Servicer's judgment, which judgment was exercised without
regard to any obligation of the Special Servicer to make payments from its own
funds pursuant to Section 3.07(b), will ultimately be recoverable.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Paying Agent, the Master Servicer, the Directing
Certificateholder and the Special Servicer, and specific ratings of Fitch herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Floating Rate Account": The trust account or accounts created and
maintained as a separate account or accounts (or as a subaccount of the
Distribution Account) by the Paying Agent pursuant to Section 3.04(b), which
shall be entitled "Xxxxx Fargo Bank, N.A., as Paying Agent, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass Through Certificates, Series 2007-CIBC20
Class A-MFL Certificates, Floating Rate Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Floating Rate Account
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan or
Companion Loan, as applicable, the excess of (i) Liquidation Proceeds net of any
related Liquidation Expenses over (ii) the Purchase Price for such Mortgage Loan
or Companion Loan, as applicable, on the date on which such Liquidation Proceeds
were received. For the avoidance of doubt, Gain-on-Sale Proceeds allocable to a
Companion Loan shall not be assets of the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Paying
Agent, pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A., as Paying
Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC20, Gain-on-Sale Reserve Account." Any such
account shall be an Eligible Account or a subaccount of an Eligible Account.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Class A-MFL Regular Interest, the Swap Contract, the Floating
Rate Account and the proceeds thereof, beneficial ownership of which is
represented by the Class A-MFL Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Gurnee Xxxxx Companion Note": The Gurnee Xxxxx Xxxx Passu Companion
Loan.
"Gurnee Xxxxx Intercreditor Agreement": That certain Intercreditor
Agreement among the noteholders, dated as of September 28, 2007, by and among
the holder of the Gurnee Xxxxx Xxxx Passu Companion Loan and the holder of the
Gurnee Xxxxx Mortgage Loan, relating to the relative rights of such holders of
the Gurnee Xxxxx Whole Loan, as the same may be further amended in accordance
with the terms thereof.
"Gurnee Xxxxx Majority Holder": With respect to the Gurnee Xxxxx
Whole Loan, the holder of the Gurnee Xxxxx Mortgage Loan.
"Gurnee Xxxxx Mortgage Loan": With respect to the Gurnee Xxxxx Whole
Loan, the Mortgage Loan that is included in the Trust (identified as Mortgage
Loan No. 2 on the Mortgage Loan Schedule), which is designated as promissory
notes A-1 and A-2, and are pari passu in right of payment with the Gurnee Xxxxx
Xxxx Passu Companion Loan to the extent set forth in the Gurnee Xxxxx
Intercreditor Agreement.
"Gurnee Xxxxx Mortgaged Property": The Mortgaged Property which
secures the Gurnee Xxxxx Whole Loan.
"Gurnee Xxxxx Notes": The Gurnee Xxxxx Mortgage Loan and the Gurnee
Xxxxx Xxxx Passu Companion Loan.
"Gurnee Xxxxx Xxxx Passu Companion Loan": With respect to the Gurnee
Xxxxx Whole Loan, the related promissory note made by the related mortgagor and
secured by the mortgage on the Gurnee Xxxxx Mortgaged Property and designated as
promissory note A-3, which is not included in the Trust and which is pari passu
in right of payment to the Gurnee Xxxxx Mortgage Loan to the extent set forth in
the related Mortgage Loan documents and as provided in the Gurnee Xxxxx
Intercreditor Agreement.
"Gurnee Xxxxx Whole Loan": The Gurnee Xxxxx Mortgage Loan, together
with the Gurnee Xxxxx Xxxx Passu Companion Loan, each of which is secured by the
same Mortgage on the Gurnee Xxxxx Mortgaged Property. References herein to the
Gurnee Xxxxx Whole Loan shall be construed to refer to the aggregate
indebtedness under the Gurnee Xxxxx Mortgage Loan and the Gurnee Xxxxx Xxxx
Passu Companion Loan.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any accountants, a Person
who is "independent" within the meaning of Rule 2-01(b) of the Securities and
Exchange Commission's Regulation S-X. When used with respect to any specified
Person, any such Person who (i) is in fact independent of the Trustee, the
Paying Agent, the Depositor, the Master Servicer, the Special Servicer, the
Directing Certificateholder, the Companion Holders and all Affiliates thereof,
(ii) does not have any material direct financial interest in or any material
indirect financial interest in any of the Trustee, the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder, the Companion Holders or any Affiliate thereof and (iii) is
not connected with the Trustee, the Paying Agent, the Depositor, the Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Holders or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however, that a Person shall not fail to be Independent of the Trustee, the
Paying Agent, the Depositor, the Master Servicer, the Special Servicer, the
Directing Certificateholder, the Companion Holders or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Paying Agent, the Depositor, the Master
Servicer, the Special Servicer, the Directing Certificateholder, the Companion
Holders or any Affiliate thereof, as the case may be, provided such ownership
constitutes less than 1% of the total assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Paying Agent, the Master Servicer, any Companion Holder or the Trust, delivered
to the Trustee, the Paying Agent, any Companion Holder and the Master Servicer),
so long as the Trust does not receive or derive any income from such Person and
provided that the relationship between such Person and the Trust is at arm's
length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5)
(except that the Master Servicer or the Special Servicer shall not be considered
to be an Independent Contractor under the definition in this clause (i) unless
an Opinion of Counsel has been delivered to the Trustee to that effect) or (ii)
any other Person (including the Master Servicer and the Special Servicer) upon
receipt by the Trustee, the Paying Agent and the Master Servicer of an Opinion
of Counsel, which shall be at no expense to the Trustee, the Paying Agent, the
Master Servicer or the Trust Fund, to the effect that the taking of any action
in respect of any REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property.
"Initial Purchaser": X.X. Xxxxxx Securities Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of any Serviced Mortgage Loan or
Non-Serviced Mortgage Loan , to the extent any portion of such proceeds are
received by the Master Servicer or Paying Agent in connection with such Serviced
Mortgage Loan or Non-Serviced Mortgage Loan, as the case may be, pursuant to the
allocations set forth in the related Intercreditor Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreement": Each of the Gurnee Xxxxx Intercreditor
Agreement, the Sawgrass Xxxxx Mall Intercreditor Agreement, the USFS Industrial
Distribution Portfolio Intercreditor Agreement, the Xxxxxxxxx Plaza
Intercreditor Agreements, the Xxxxxxx Park Retail Intercreditor Agreement and
any intercreditor agreement entered into in connection with the issuance to the
direct or indirect equity holders in the Mortgagor of any future mezzanine
indebtedness permitted under the related Mortgage Loan documents.
"Interest Accrual Period": With respect to any Class of Regular
Certificates (other than the Class A-MFL Certificates if the Class A-MFL
Distribution Conversion is not in effect), the Class A-MFL Regular Interest or
the Uncertificated Lower-Tier Interests and any Distribution Date, the period
beginning on the first day of the calendar month preceding the calendar month in
which the related Distribution Date occurs and ending on the last day of the
calendar month preceding the calendar month in which such Distribution Date
occurs, calculated assuming that each month has 30 days and each year has 360
days. With respect to the Class A-MFL Certificates and any Distribution Date for
which the Class A-MFL Distribution Conversion is not in effect, the Interest
Accrual Period will be the period from and including the Distribution Date in
the month preceding the month in which the related Distribution Date occurs (or
in the case of the first Distribution Date, the Closing Date) to, but excluding
the related Distribution Date, calculated assuming that each month has the
actual number of days in such Interest Accrual Period and each year has 360
days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates (other than the Class A-MFL Certificates) and the Class A-MFL
Regular Interest for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates or the Class A-MFL Regular
Interest, as applicable, for such Distribution Date and any Accrued Interest
From Recoveries for such Class, to the extent not previously paid for all prior
Distribution Dates.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.25 in the name of "Xxxxx Fargo Bank, N.A., as Paying Agent, in trust
for the registered holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Trust 2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20, Interest Reserve Account," into which the amounts set forth in
Section 3.25 shall be deposited directly and which must be an Eligible Account
or subaccount of an Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, each Companion Holder (but only with respect to the related
Serviced Whole Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"LIBOR": With respect to the Class A-MFL Certificates and each
Interest Accrual Period for which the Class A-MFL Distribution Conversion is not
in effect, the rate for deposits in U.S. Dollars, for a period equal to one
month, which appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m., London
time, on the related LIBOR Determination Date. If such rate does not appear on
the Reuters Screen LIBOR01 Page, the rate for that Interest Accrual Period shall
be determined on the basis of the rates at which deposits in U.S. Dollars are
offered by four major banks in the London interbank market selected by the
Paying Agent to provide such bank's offered quotation of such rates at
approximately 11:00 a.m., London time, on the related LIBOR Determination Date
to prime banks in the London interbank market for a period of one month,
commencing on the first day of such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Paying Agent shall request the principal London office of
each of such four banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that Interest Accrual Period shall be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that Interest Accrual Period shall be the arithmetic
mean of the rates quoted by major banks in New York City selected by the Paying
Agent, at approximately 11:00 a.m., New York City time, on the LIBOR
Determination Date with respect to such Mortgage Loan Accrual Period for loans
in U.S. Dollars to leading European banks for a period equal to one month,
commencing on the first day of such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Paying Agent shall determine LIBOR for each Interest
Accrual Period and the determination of LIBOR by Paying Agent shall be binding
absent manifest error. LIBOR for the initial Interest Accrual Period shall be
5.12875%.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England.
"LIBOR Determination Date": (i) With respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the Master Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01 or acquired by the
Sole Certificateholder in exchange for its Certificates pursuant to Section
9.01; (vi) such Mortgage Loan is purchased by (a) the applicable Companion
Holder pursuant to or as contemplated by Section 3.18(d) or (b) a mezzanine
lender pursuant to the related Intercreditor Agreement; or (vii) such Mortgage
Loan is purchased by the related Serviced Whole Loan Controlling Holder pursuant
to the related Intercreditor Agreement. With respect to any REO Property (and
the related REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; (ii) such REO Property
is purchased by the Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01; or (iii) such REO Property is purchased by (a) the applicable
Companion Holder pursuant to or as contemplated by Section 3.18(d) or (b) a
mezzanine lender pursuant to the related Intercreditor Agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
(except with respect to a Non-Serviced Mortgaged Property) pursuant to Section
3.18 (including, without limitation, legal fees and expenses, committee or
referee fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property (except with
respect to a Non-Serviced Mortgaged Property) as to which the Special Servicer
receives (i) a full or discounted payoff (or an unscheduled partial payment to
the extent such prepayment is required by the Special Servicer as a condition to
a workout) with respect thereto from the related Mortgagor or (ii) any
Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the
related Mortgage Loan, or REO Property (in any case, other than amounts for
which a Workout Fee has been paid, or will be payable), equal to the product of
the Liquidation Fee Rate and the proceeds of such full or discounted payoff or
other partial payment or the Liquidation Proceeds or Insurance and Condemnation
Proceeds (net of the related costs and expenses associated with the related
liquidation) related to such liquidated Specially Serviced Mortgage Loan or REO
Property, as the case may be; provided, however, that no Liquidation Fee shall
be payable with respect to any event described in (1) clause (iii)(A) of the
definition of "Liquidation Proceeds" if such purchase occurs within the first 90
days after the Special Servicer's initial determination of the fair value of
such Specially Serviced Mortgage Loan, (2) clause (iv) of the definition of
"Liquidation Proceeds" if such repurchase occurs within the time parameters
(including any applicable extension period) set forth in this Agreement and in
the related Mortgage Loan Purchase Agreement, (3) clause (v) and clause (vi) of
the definition of "Liquidation Proceeds," (except that a Liquidation Fee will be
payable with respect to any purchase by a mezzanine lender or the holder of a
Companion Loan if such purchase does not occur within 90 days following the date
the related Mortgage Loan becomes subject to such purchase option under the
related Intercreditor Agreement) or (4) with respect to a Serviced Companion
Loan, a purchase or repurchase of a Serviced Companion Loan under an Other
Pooling and Servicing Agreement (for the avoidance of doubt, a Liquidation Fee
payable under this Agreement, in accordance herewith, may be payable on the
entire Serviced Whole Loan).
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan or Corrected Mortgage Loan
through a trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any portion thereof required to be released to the related
Mortgagor in accordance with applicable law and the terms and conditions of the
related Mortgage Note and Mortgage; (ii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iii) (A) the purchase of a Defaulted
Mortgage Loan by the Option Holder pursuant to Section 3.18(a) or (B) any other
sale thereof pursuant to Section 3.18(c) and Section 3.18(e); (iv) the
repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to
Section 6 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a
Mortgage Loan or REO Property by the Holders of the Controlling Class, the
Special Servicer, the Master Servicer or the Holders of the Class LR
Certificates pursuant to Section 9.01; or (vi) the purchase of a Mortgage Loan
or an REO Property by (a) the applicable Companion Holder pursuant to Section
3.18(d), or (b) any mezzanine lender under a mezzanine loan made to an owner of
the Mortgagor of the related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 1
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 2 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 2 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 1 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 2 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 1 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 2 Principal Distribution Amount).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2, Class A-3, Class A-4 and Class
A-SB Certificates, exceeds (2) the aggregate amount distributed in respect of
principal on the Class X-0, Xxxxx X-0, Class A-3, Class A-4 and Class A-SB
Certificates on the prior Distribution Date. There will be no Loan Group 1
Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided, further,
(I) that, with respect to the amounts identified in clauses (i), (ii) and (iii)
above, if any of such amounts reimbursed from principal collections on the Group
2 Mortgage Loans are subsequently recovered on the related Mortgage Loan,
subject to the application of any recovery to increase the Loan Group 1
Principal Distribution Amount as required under clause (II) of the definition of
"Loan Group 1 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 2 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 1 Principal Distribution Amount).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Paying Agent, in trust for the registered Holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC20, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC20, Lower-Tier Distribution
Account." Any such account, accounts or sub-accounts shall be an Eligible
Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)), and in the case of the Class LA-1, Class LA-2-1,
Class LA-2-2, Class LA-2-3, Class LA-3-1, Class LA-3-2, Class LA-3-3, Class
LA-3-4, Class LA-3-5, Class LA-4-1, Class LA-4-2, Class LA-4-3, Class LA-4-4,
Class LA-4-5, Class LA-4-6, Class LA-4-7, Class LA-4-8, Class LA-4-9, Class
LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class
LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class
LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class
LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class LA-SB-5, Class
LA-SB-6, Class LA-SB-7, Class LA-M, Class LA-MFL, Class LA-J, Class LB, Class
LC, Class LD, Class LE-1, Class LE-2, Class LF-1, Class LF-2, Class LG-1, Class
LG-2, Class LG-3, Class LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LJ-3,
Class LK-1, Class LK-2, Class LL-1, Class LL-2, Class LM-1, Class LM-2, Class
LN, Class LP-1, Class LP-2, Class LQ, Class LT, Class LNR-1, Class LNR-2 and
Class LNR-3 Uncertificated Interests, as set forth in Section 4.01(b)).
"Lower-Tier REMIC": One of two separate REMICs comprising a portion
of the Trust Fund, the assets of which consist of the Mortgage Loans, any REO
Property with respect thereto (or an allocable portion thereof, in the case of
any Serviced Mortgage Loan), or the Trust Fund's beneficial interest in the REO
Property with respect to a Non-Serviced Whole Loan, such amounts as shall from
time to time be held in the Certificate Account (other than with respect to the
Companion Loans), the REO Account, if any, the Interest Reserve Account, the
Gain-on-Sale Reserve Account and the Lower-Tier Distribution Account, and all
other property included in the Trust Fund that is not in the Upper-Tier REMIC or
the Grantor Trust.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Master Servicer": With respect to each of the Mortgage Loans,
Midland Loan Services, Inc., a Delaware corporation, and its successors in
interest and assigns, or any successor appointed as allowed herein.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Merger Notice": As defined in Section 6.02(b).
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest on such
Mortgage Loan or Companion Loan, including any Balloon Payment, which is payable
(as the terms of the applicable Mortgage Loan or Companion Loan may be changed
or modified in connection with a bankruptcy or similar proceedings involving the
related Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to pursuant to the terms hereof) by a Mortgagor from time to
time under the related Mortgage Note and applicable law, without regard to any
acceleration of principal of such Mortgage Loan or Companion Loan by reason of
default thereunder.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master Servicer and the Special Servicer, and
specific ratings of Moody's herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan and Companion Loan,
the mortgage, deed of trust or other instrument securing a Mortgage Note and
creating a lien on the fee and/or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Trust 2007-CIBC20, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC20" or in blank,
provided that the requirements of this clause (i) will be satisfied
by delivery of a signed lost note affidavit and indemnity properly
assigned or endorsed to the Trustee as described above, with a copy
of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon (except for recording information not yet
available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20" or in blank and, in the case of a Serviced Whole Loan,
in its capacity as "lead lender" under the related Intercreditor
Agreement on behalf of the related Serviced Companion Noteholders;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon (except for recording information not
yet available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20" or in blank and, in the case of a Serviced Whole Loan,
in its capacity as "lead lender" under the related Intercreditor
Agreement on behalf of the related Serviced Companion Noteholders;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form (except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), executed by the applicable Mortgage Loan Seller
to "Xxxxx Fargo Bank, N.A., as trustee for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20"
or in blank and, in the case of a Serviced Whole Loan, in its
capacity as "lead lender" under the related Intercreditor Agreement
on behalf of the related Serviced Companion Noteholders;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company, provided
the policy is issued within 18 months from the Closing Date, in
connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon, with the exception of filing or recording
information not yet available because the UCC Financing Statement,
assignment or continuation statement, as the case may be, has not
yet been returned from the applicable filing or recording office),
and to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to, or pari passu with, such Mortgage Loan as set
forth in such intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a copy thereof and any related
ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any property management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of any lock-box or cash management agreement(s);
(xxiii) a list related to such Mortgage Loan indicating the
related Mortgage Loan documents included in the related Mortgage
File (the "Mortgage Loan Checklist");
(xxiv) a copy of all environmental reports that were received
by the applicable Mortgage Loan Seller relating to the relevant
Mortgaged Property;
(xxv) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of
each Mortgage Note relating to such Companion Loan(s), rather than
the original; and
(xxvi) with respect to a Non-Serviced Mortgage Loan, a copy of
the related Non-Serviced Pooling Agreement;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
for the Companion Loan otherwise described above shall be construed to instead
refer to a photocopy of such Mortgage Note), (d) the execution and/or
recordation of any assignment of Mortgage, any separate assignment of Assignment
of Leases and any assignment of any UCC Financing Statement in the name of the
Trustee shall not be construed to limit the beneficial interest of the related
Companion Holder(s) in such instrument and the benefits intended to be provided
to them by such instrument, it being acknowledged that (i) the Trustee shall
hold such record title for the benefit of the Trust as the holder of the related
Mortgage Loan and the related Companion Holder(s) collectively and (ii) any
efforts undertaken by the Trustee, the Master Servicer, or the Special Servicer
on its behalf to enforce or obtain the benefits of such instrument shall be
construed to be so undertaken by Trustee, the Master Servicer or the Special
Servicer for the benefit of the Trust as the holder of the applicable Mortgage
Loan and the related Companion Holder(s) collectively, and (e) with respect to
the Non-Serviced Mortgage Loans, the preceding document delivery requirements
will be met by the delivery by the applicable Mortgage Loan Seller of copies of
the documents specified above (other than the Mortgage Note and intervening
endorsements evidencing such Mortgage Loan, with respect to which the original
shall be required), including a copy of the Mortgage securing the applicable
Mortgage Loan.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number and loan servicing number
(as specified in Annex A-1 to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state, county and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) [Reserved];
(xiv) [Reserved];
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period;
(xxvi) the applicable Loan Group to which the Mortgage Loan
belongs; and
(xxvii) the number of units, pads or square feet with respect
to each Mortgaged Property.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of JPMorgan Chase Bank, National
Association, a national banking association, or its successor in interest and
CIBC Inc., a Delaware corporation, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law; or (ii) any Mortgage Loan or Companion Loan after its
Maturity Date, the annual rate described in clause (i) above determined without
regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such period
on funds relating to the Trust Fund held in such account, exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Master
Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or
similar proceeding involving the Mortgagor; provided, further, that if any
Mortgage Loan does not accrue interest on the basis of a 360-day year consisting
of twelve 30-day months, then, solely for purposes of calculating Pass-Through
Rates, the Net Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest) in respect of such
Mortgage Loan during such one-month period at the related Net Mortgage Rate;
provided, further, that, with respect to each Interest Reserve Loan, the Net
Mortgage Rate for the one month period (A) preceding the Due Dates that occur in
January and February in any year which is not a leap year or preceding the Due
Date that occurs in February in any year which is a leap year (in either case,
unless the related Distribution Date is the final Distribution Date), will be
the per annum rate stated in the related Mortgage Note less the related
Administrative Cost Rate and (B) preceding the Due Date in March (or February,
if the related Distribution Date is the final Distribution Date), will be
determined inclusive of the amounts withheld in the immediately preceding
January and February, if applicable. With respect to any REO Loan, the Net
Mortgage Rate shall be calculated as described above, determined as if the
predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"NMWHFIT": A "Non-Mortgage Widely Held Fixed Investment Trust," as
that term is defined in Treasury Regulations Section 1.671-5(b)(12) or successor
provisions.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Master Servicer or the Trustee, as applicable, will
not be ultimately recoverable, together with any accrued and unpaid interest
thereon at the Reimbursement Rate, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Loan; provided, however, that the
Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make an affirmative determination in accordance with the
Servicing Standards, that any P&I Advance previously made or proposed to be made
is a Nonrecoverable P&I Advance and shall deliver to the Master Servicer (and
with respect to a Serviced Mortgage Loan, to any Other Servicer, and with
respect to a Non-Serviced Mortgage Loan, to the related Non-Serviced Master
Servicer) and the Trustee notice of such determination. Any such determination
shall be conclusive and binding on the Master Servicer and the Trustee,
provided, however, the Special Servicer shall have no obligation (or any 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 Special Servicer that
such P&I Advance is or would be a Non-Recoverable P&I Advance, such decision
shall remain with the Master Servicer or Trustee, as applicable. Notwithstanding
the foregoing, if the Special Servicer makes a determination that only a
portion, and not all, of any previously made or proposed P&I Advance is a
Nonrecoverable P&I Advance, the Master Servicer and the Trustee shall have the
right to make its own subsequent determination that any remaining portion of any
such previously made or proposed P&I Advance is a Nonrecoverable P&I Advance. In
making such recoverability determination, the Master Servicer, Special Servicer
or Trustee, as applicable, will be entitled (a) to consider (among other things)
(i) the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified and (ii) the related Mortgaged Properties in
their "as is" or then current conditions and occupancies, as modified by such
party's assumptions (consistent with the Servicing Standards in the case of the
Master Servicer and the Special Servicer or in its good faith business judgment
in the case of the Trustee, solely in its capacity as Trustee) regarding the
possibility and effects of future adverse change with respect to such Mortgaged
Properties, (b) to estimate and consider (among other things) future expenses,
(c) to estimate and consider (consistent with the Servicing Standards in the
case of the Master Servicer and the Special Servicer or in its good faith
business judgment in the case of the Trustee, solely in its capacity as Trustee)
(among other things) the timing of recoveries and (d) to give due regard to the
existence of any Nonrecoverable Advances which, at the time of such
consideration, the recovery of which are being deferred or delayed by the Master
Servicer, in light of the fact that related proceeds are a source of recovery
not only for the Advance under consideration but also a potential source of
recovery for such delayed or deferred Advance. In addition, any Person, in
considering whether a P&I Advance is a Nonrecoverable Advance, will be entitled
to give due regard to the existence of any outstanding Nonrecoverable Advance or
Workout Delayed Reimbursement Amount with respect to other Mortgage Loans which,
at the time of such consideration, the reimbursement of which is being deferred
or delayed by the Master Servicer or the Trustee because there is insufficient
principal available for such reimbursement, in light of the fact that proceeds
on the related Mortgage Loan are a source of reimbursement not only for the P&I
Advance under consideration, but also as a potential source of reimbursement of
such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are
or may be being deferred or delayed. In addition, any such Person may update or
change its recoverability determinations at any time (but not reverse any other
Person's determination that an Advance is a Nonrecoverable Advance) and,
consistent with the Servicing Standards, in the case of the Master Servicer or
in its good faith business judgment in the case of the Trustee (solely in its
capacity as Trustee), may obtain, promptly upon request, from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for making a
recoverability determination. Absent bad faith, the Master Servicer's, Special
Servicer's or the Trustee's determination as to the recoverability of any P&I
Advance shall be conclusive and binding on the Certificateholders. The
determination by the Master Servicer, the Special Servicer or the Trustee, as
applicable, that the Master Servicer or the Trustee, as applicable, has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, or any updated or changed
recoverability determination, shall be evidenced by an Officer's Certificate
delivered by either the Special Servicer or the Master Servicer to the other and
to the Trustee, the Paying Agent, the Directing Certificateholder (and in the
case of a Serviced Mortgage Loan, any Other Servicer), the Depositor, or by the
Trustee to the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Directing Certificateholder (and in the case of a Serviced
Mortgage Loan, any Other Servicer). The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the Master
Servicer, the Special Servicer or the Trustee, as applicable, forming the basis
of such determination (which shall be accompanied by, to the extent available,
income and expense statements, rent rolls, occupancy status, property
inspections and any other information used by the Master Servicer, the Special
Servicer or the Trustee, as applicable, to make such determination and shall
include any existing Appraisal of the related Mortgage Loan or Mortgaged
Property). The Trustee shall be entitled to conclusively rely on the Master
Servicer's determination that a P&I Advance is or would be nonrecoverable and
shall conclusively rely on and be bound by any determination of the Special
Servicer that a P&I Advance is or would be nonrecoverable, and the Master
Servicer shall conclusively rely on and be bound by the Special Servicer's
determination that a P&I Advance is or would be nonrecoverable. In the case of a
cross collateralized Mortgage Loan, such recoverability determination shall take
into account the cross collateralization of the related cross collateralized
Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than a
Non-Serviced Mortgage Loan) or REO Property which, in the reasonable judgment of
the Master Servicer, the Special Servicer or the Trustee, as the case may be,
will not be ultimately recoverable, together with any accrued and unpaid
interest thereon, at the Reimbursement Rate, from Late Collections or any other
recovery on or in respect of such Mortgage Loan or REO Property. In making such
recoverability determination, such Person will be entitled (a) to consider
(among other things) (i) the obligations of the Mortgagor under the terms of the
related Mortgage Loan as it may have been modified and (ii) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
Servicing Standards in the case of the Master Servicer or the Special Servicer
or in its good faith business judgment in the case of the Trustee, solely in its
capacity as Trustee) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, (b) to estimate and consider
(consistent with the Servicing Standards in the case of the Master Servicer or
the Special Servicer or in its good faith business judgment in the case of the
Trustee, solely in its capacity as Trustee) (among other things) future expenses
and (c) to estimate and consider (among other things) the timing of recoveries.
In addition, any Person, in considering whether a Servicing Advance is a
Nonrecoverable Servicing Advance, will be entitled to give due regard to the
existence of any Nonrecoverable Advance or Workout Delayed Reimbursement Amounts
with respect to other Mortgage Loans which, at the time of such consideration,
the recovery of which are being deferred or delayed by the Master Servicer, in
light of the fact that proceeds on the related Mortgage Loan are a source of
recovery not only for the Servicing Advance under consideration, but also as a
potential source of recovery of such Nonrecoverable Advance or Workout Delayed
Reimbursement Amounts which are or may be being deferred or delayed. In
addition, any such Person may update or change its recoverability determinations
at any time (but not reverse any other Person's determination that an Advance is
a Nonrecoverable Advance) and, consistent with the Servicing Standards, in the
case of the Master Servicer, may obtain, promptly upon request, from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for making a
recoverability determination. The determination by the Master Servicer, the
Special Servicer or the Trustee, as the case may be, that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, or any updated or
changed recoverability determination, shall be evidenced by an Officer's
Certificate delivered by either of the Special Servicer or Master Servicer to
the other and to the Trustee, the Paying Agent, the Directing Certificateholder
(and in the case of a Serviced Mortgage Loan, any Other Servicer), and the
Depositor, or by the Trustee to the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent and the Directing Certificateholder (and in the case
of a Serviced Mortgage Loan, any Other Servicer); provided, however, that the
Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make an affirmative determination in accordance with the
Servicing Standards, that any Servicing Advance previously made or proposed to
be made is a Nonrecoverable Servicing Advance and shall deliver to the Master
Servicer and the Trustee notice of such determination. Any such determination
shall be conclusive and binding on the Master Servicer, the Special Servicer and
the Trustee, provided, however the Special Servicer shall have no such
obligation (or any right) to make an affirmative determination that any
Servicing Advance is or would be recoverable and in the absence of a
determination by the Special Servicer that such Servicing Advance is or would be
a Nonrecoverable Servicing Advance, such decision shall remain with the Master
Servicer or the Trustee, as applicable. Notwithstanding the foregoing, if the
Special Servicer makes a determination that only a portion, and not all, of any
previously made or proposed Servicing Advance is a Nonrecoverable Servicing
Advance, the Master Servicer and the Trustee shall have the right to make its
own subsequent determination that any remaining portion of any such previously
made or proposed Servicing Advance is a Nonrecoverable Servicing Advance. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the Master Servicer, the Special Servicer or the
Trustee, as applicable, forming the basis of such determination (which shall be
accompanied by, to the extent available, related income and expense statements,
rent rolls, occupancy status and property inspections, and shall include any
existing Appraisal of the related Mortgage Loan or Mortgaged Property). The
Special Servicer shall promptly furnish any party required to make Servicing
Advances hereunder with any information in its possession regarding the
Specially Serviced Mortgage Loans and REO Properties as such party required to
make Servicing Advances may reasonably request for purposes of making
recoverability determinations. The Trustee shall be entitled to conclusively
rely on the Master Servicer's determination that a Servicing Advance is or would
be nonrecoverable and shall conclusively rely on and be bound by any
determination of the Special Servicer that a Servicing Advance is or would be
nonrecoverable, and the Master Servicer shall conclusively rely on and be bound
by the Special Servicer's determination in writing that a Servicing Advance is
or would be nonrecoverable. In the case of a cross collateralized Mortgage Loan,
such recoverability determination shall take into account the cross
collateralization of the related cross collateralized Mortgage Loan. The
determination as to the recoverability of any servicing advance previously made
or proposed to be made in respect of a Non-Serviced Whole Loan shall be made by
the related Non-Serviced Master Servicer, Non-Serviced Special Servicer or
Non-Serviced Trustee, as the case may be, pursuant to the Non-Serviced Pooling
Agreement.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q,
Class T, Class NR, Class R or Class LR Certificate.
"Non-Serviced Companion Loan": Each of the Sawgrass Xxxxx Mall
Companion Loans and the USFS Industrial Distribution Portfolio Pari Passu
Companion Loans, as applicable.
"Non-Serviced Intercreditor Agreement": Each of the Sawgrass Xxxxx
Mall Intercreditor Agreement and the USFS Industrial Distribution Portfolio
Intercreditor Agreement, as applicable.
"Non-Serviced Master Servicer": Each of the Sawgrass Xxxxx Mall
Master Servicer and the USFS Industrial Distribution Portfolio Master Servicer,
as applicable.
"Non-Serviced Mortgage Loan": Each of the Sawgrass Xxxxx Mall
Mortgage Loan and the USFS Industrial Distribution Portfolio Mortgage Loan, as
applicable.
"Non-Serviced Mortgaged Property": Each of the Sawgrass Xxxxx Mall
Mortgaged Property and the USFS Industrial Distribution Portfolio Mortgaged
Property, as applicable.
"Non-Serviced Pooling Agreement": Each of the Sawgrass Xxxxx Mall
Pooling Agreement and the USFS Industrial Distribution Portfolio Pooling
Agreement, as applicable.
"Non-Serviced Special Servicer": Each of the Sawgrass Xxxxx Mall
Special Servicer and the USFS Industrial Distribution Portfolio Special
Servicer, as applicable.
"Non-Serviced Trustee": Each of the Sawgrass Xxxxx Mall Trustee and
the USFS Industrial Distribution Portfolio Trustee, as applicable.
"Non-Serviced Whole Loan": Each of the Sawgrass Xxxxx Mall Whole
Loan and the USFS Industrial Distribution Portfolio Whole Loan, as applicable.
"Non-Serviced Whole Loan Controlling Holder": Each of the Sawgrass
Xxxxx Mall Controlling Holder and the USFS Industrial Distribution Portfolio
Controlling Holder, as applicable.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan (other
than a Non-Serviced Mortgage Loan) or Companion Loan that is not a Specially
Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is owned
(or may be owned pursuant to the applicable partnership agreement), directly or
indirectly (other than through a U.S. corporation), by a Non-U.S. Person or (B)
if such Person is a U.S. Person with respect to whom income from a Residual
Certificate is attributable to a foreign permanent establishment of fixed base,
within the meaning of an applicable income treaty, of such Person or any other
U.S. Person.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of each Component, the amount set forth in the
applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2, Class X-0, Xxxxx
X-0, Class A-SB, Class A-1A, Class X-2, Class A-M, Class A-MFL and Class A-J
Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer or any Additional Servicer, as
the case may be, or a Responsible Officer of the Trustee or Paying Agent, as the
case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable in form and delivered to the Trustee and the Paying
Agent, except that any opinion of counsel relating to (a) the qualification of
the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC, (b) compliance with the
REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
under subpart E, Part I of subchapter J of the Code for federal income tax
purposes or (d) the resignation of the Master Servicer, the Special Servicer or
the Depositor pursuant to Section 6.04, must be an opinion of counsel who is in
fact Independent of the Depositor, the Master Servicer or the Special Servicer,
as applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class X-1, Class X-2 and the Residual Certificates)
and the Class A-MFL Regular Interest, the initial aggregate principal amount
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount and Class X-2 Notional Amount, the respective initial Notional Amount
thereof as of the Closing Date, as specified in the Preliminary Statement.
"Other Pooling and Servicing Agreement": Any pooling and servicing
agreement that creates a trust fund whose assets include any Serviced Companion
Loan.
"Other Securitization": As defined in Section 11.06.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement.
"Other Trustee": Any trustee under an Other Pooling and Servicing
Agreement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.03
or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4
Pass-Through Rate, the Class A-SB Pass-Through Rate, the Class A-1A Pass-Through
Rate, the Class A-M Pass-Through Rate, the Class A-MFL Pass-Through Rate, the
Class A-MFL Regular Interest Pass-Through Rate, the Class A-J Pass-Through Rate,
the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D
Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate,
the Class G Pass-Through Rate, the Class H Pass-Through Rate, the Class J
Pass-Through Rate, the Class K Pass-Through Rate, the Class L Pass-Through Rate,
the Class M Pass-Through Rate, the Class N Pass-Through Rate, the Class P
Pass-Through Rate, the Class Q Pass-Through Rate, the Class T Pass-Through Rate,
the Class NR Pass-Through Rate, the Class X-1 Pass-Through Rate or the Class X-2
Pass-Through Rate.
"Paying Agent": Xxxxx Fargo Bank, N.A., a national banking
association organized under the laws of the United States, or any successor
appointed thereto pursuant to Section 5.07 or any successor Paying Agent
appointed hereunder.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan) or Companion Loan (or successor REO Loan), any amounts actually
collected thereon (or, in the case of a Serviced Companion Loan (or successor
REO Loan thereto) that is part of a Serviced Whole Loan, actually collected on
such Serviced Whole Loan and allocated and paid on such Serviced Companion Loan
(or successor REO Loan) in accordance with the related Intercreditor Agreement)
that represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or prepayment premium.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
Original Certificate Balance or Original Notional Amount, as applicable, of such
Class of Certificates as of the Closing Date. With respect to a Residual
Certificate, the percentage interest is set forth on the face thereof.
"Performance Certification": As defined in Section 11.06.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent, or managed by the Paying Agent or any affiliate of the Paying Agent, if
otherwise qualifying hereunder), regardless whether issued by the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America,
Xxxxxx Mae, Xxxxxxx Mac or any agency or instrumentality of the United States of
America, the obligations of which are backed by the full faith and credit of the
United States of America that mature in one (1) year or less from the date of
acquisition; provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of Xxxxxx Mae or
Xxxxxxx Mac, shall be a Permitted Investment only if such investment would not
result in the downgrading, withdrawal or qualification of the then-current
rating assigned by each Rating Agency to any Certificate or (or, insofar as
there is then outstanding any class of Serviced Companion Loan Securities that
is then rated by such Rating Agency, such class of securities) as evidenced in
writing;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in one (1) year or less after the date of issuance and
are issued or held by any depository institution or trust company (including the
Trustee) incorporated or organized under the laws of the United States of
America or any State thereof and subject to supervision and examination by
federal or state banking authorities, so long as the commercial paper or other
short- term debt obligations of such depository institution or trust company are
rated in the highest rating categories of each Rating Agency or such other
rating as would not result in the downgrading, withdrawal or qualification of
the then current rating assigned by each Rating Agency to any Class of
Certificates (or, insofar as there is then outstanding any class of Serviced
Companion Loan Securities that is then rated by such Rating Agency, such class
of securities) as evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of America
or any state thereof which mature in one (1) year or less from the date of
acquisition, which debt obligations are rated in the highest rating categories
of each Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then current rating assigned by
each Rating Agency to any Class of Certificates (or, insofar as there is then
outstanding any class of Serviced Companion Loan Securities that is then rated
by such Rating Agency, such class of securities) as evidenced in writing;
provided, however, that securities issued by any particular corporation will not
be Permitted Investments to the extent that investment therein will cause the
then outstanding principal amount of securities issued by such corporation and
held in the accounts established hereunder to exceed 10% of the sum of the
aggregate principal balance and the aggregate principal amount of all Permitted
Investments in such accounts;
(v) commercial paper (including both non interest bearing discount
obligations and interest bearing obligations) of any corporation or other entity
organized under the laws of the United States or any state thereof payable on
demand or on a specified date maturing in one (1) year or less from the date of
acquisition thereof and which is rated in the highest rating category of each
Rating Agency (or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned by each Rating Agency to
any Class of Certificates (or, insofar as there is then outstanding any class of
Serviced Companion Loan Securities that is then rated by such Rating Agency,
such class of securities) as evidenced in writing);
(vi) money market funds, rated in the highest rating categories of
each Rating Agency;
(vii) the Xxxxx Fargo Prime Investment Money Market Fund so long as
it is rated by each Rating Agency in its highest money market fund ratings
category (or, if not rated by Xxxxx'x, Fitch or S&P, otherwise acceptable to
Xxxxx'x, Fitch or S&P, as applicable, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates) (or,
insofar as there is then outstanding any class of Serviced Companion Loan
Securities that is then rated by such Rating Agency, such class of securities);
and
(viii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating Agency shall have
confirmed in writing that such investment will not result in a downgrade,
qualification or withdrawal of the then current rating assigned by such Rating
Agency to any Class of Certificates (or, insofar as there is then outstanding
any class of Serviced Companion Loan Securities that is then rated by such
Rating Agency, such class of securities) as evidenced in writing and (b) which
qualifies as a "cash flow investment" pursuant to Section 860G(a)(6) of the
Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall have a predetermined fixed dollar of principal due at maturity that cannot
vary or change and (b) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the Master Servicer receives an Opinion of Counsel, at its own expense,
to the effect that such investment will not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC. Permitted Investments that are subject
to prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person or any agent thereof other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar based upon an opinion of counsel to the effect that the
transfer of an Ownership Interest in any Residual Certificate to such Person may
cause the Trust Fund to fail to qualify as one or more REMICs at any time that
the Certificates are outstanding and (c) a Person that is a Non-U.S. Person.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees),
to the extent collected from the related Mortgagor (without regard to any
prepayment premium or Yield Maintenance Charge actually collected), that would
have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment from and after such Due Date and ending on the date
of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such following Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Master
Servicer from the Servicing Fee to each Initial Sub-Servicer, which monthly fee
accrues at the rate per annum specified as such in the Sub-Servicing Agreement
with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York City edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class A-MFL and Class
X Certificates) and the Class A-MFL Regular Interest, an amount equal to the sum
of (a) the Principal Shortfall for such Distribution Date, (b) the Scheduled
Principal Distribution Amount for such Distribution Date and (c) the Unscheduled
Principal Distribution Amount for such Distribution Date; provided, that the
Principal Distribution Amount for any Distribution Date shall be reduced by the
amount of any reimbursements of (i) Nonrecoverable Advances plus interest on
such Nonrecoverable Advances that are paid or reimbursed from principal
collections on the Mortgage Loans in a period during which such principal
collections would have otherwise been included in the Principal Distribution
Amount for such Distribution Date and (ii) Workout-Delayed Reimbursement Amounts
that were paid or reimbursed from principal collections on the Mortgage Loans in
a period during which such principal collections would have otherwise been
included in the Principal Distribution Amount for such Distribution Date
(provided, that, in the case of clause (i) and (ii) above, if any of the amounts
that were reimbursed from principal collections on the Mortgage Loans are
subsequently recovered on the related Mortgage Loan, such recovery will increase
the Principal Distribution Amount for the Distribution Date related to the
period in which such recovery occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class A (other than the Class A-MFL Certificates), Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class P, Class Q, Class T and Class NR
Certificates and the Class A-MFL Regular Interest for such preceding
Distribution Date pursuant to Section 4.01(a) on such preceding Distribution
Date. The Principal Shortfall for the initial Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchaser, each Mortgage
Loan Seller (solely with respect to the Mortgage Loans sold by such Mortgage
Loan Seller to the Trust) and certain financial market publishers (which
initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex Solutions, Inc.), any
Companion Holder, each party to this Agreement, the Swap Counterparty, the
Directing Certificateholder, any designee of the Depositor and any other Person
who shall have provided the Paying Agent with a certificate, using the form
attached hereto as Exhibit S, which form is available from the Paying Agent,
certifying that such Person is a Certificateholder, a beneficial owner or a
prospective purchaser of a Certificate
"Prospectus": The Prospectus, dated August 3, 2007, as supplemented
by the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement, dated September
25, 2007, relating to the offering of the Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan)
or, if applicable, Serviced Whole Loan to be purchased pursuant to (A) Section 6
of the related Mortgage Loan Purchase Agreement by a Mortgage Loan Seller, (B)
Section 3.18(b) through (g), as applicable, or (C) Section 9.01, a price equal
to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default Interest) to but not including
the Due Date immediately preceding the Determination Date for the
related Distribution Date in which such Purchase Price is included
in the Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or estimated to be incurred by the
Master Servicer, the Special Servicer, the Depositor and the Trustee
in respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation, including, without limitation, all legal
fees and expenses and any expenses of the Trust Fund relating to
such Mortgage Loan (or REO Loan); plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c),
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Serviced Whole Loan, the term "REO Loan" shall mean the REO Loan with respect to
both the related Mortgage Loan and the related Companion Loans.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with an
insurance financial strength rating of at least "A-" by S&P, "A3" by Xxxxx'x
(or, if not rated by Xxxxx'x, at least "A-" by one other nationally recognized
insurance rating organization (which may include A.M. Best Company)) and "A-" by
Fitch (or, if not rated by Fitch, at least "A-1" by one other nationally
recognized insurance rating organization (which may include "A:IX" or better by
A.M. Best Company)) and (ii) with respect to the fidelity bond and errors and
omissions Insurance Policy required to be maintained pursuant to Section
3.07(c), except as set forth in Section 3.07(c), an insurance company that has a
claims paying ability (or the obligations which are guaranteed or backed by a
company having such claims paying ability) rated no lower than two ratings below
the rating assigned to the then highest rated outstanding Certificate, but in no
event lower than "A-" by S&P and Fitch and "A3" by Xxxxx'x (or, if not rated by
Fitch or Xxxxx'x, then at least "A-" by two other nationally recognized
statistical rating organizations (which may include the other Rating Agencies))
or, in the case of clauses (i) and (ii), such other rating as each Rating Agency
shall have confirmed in writing will not cause such Rating Agency to downgrade,
qualify or withdraw the then current rating assigned by such Rating Agency to
any Class of Certificates (or, insofar as there is then outstanding any class of
Serviced Companion Loan Securities that is then rated by such Rating Agency,
such class of securities) as evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360 day year consisting of twelve 30 day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan to value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current loan
to value ratio not higher than the then current loan to value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of
either of the REMICs established under this Agreement or the imposition of tax
on either of such REMICs other than a tax on income expressly permitted or
contemplated to be imposed by the terms of this Agreement, as determined by an
Opinion of Counsel; (xvii) have an engineering report with respect to the
related Mortgaged Property that will be delivered as a part of the related
Servicing File; (xviii) become a part of the same Loan Group as the deleted
Mortgage Loan; and (xix) be current in the payment of all scheduled payments of
principal and interest then due. In the event that more than one mortgage loan
is substituted for a deleted Mortgage Loan, then the amounts described in clause
(i) shall be determined on the basis of aggregate Stated Principal Balances and
each such proposed Qualified Substitute Mortgage Loan shall individually satisfy
each of the requirements specified in (ii) through (xix); provided, the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis;
provided further, that no individual Mortgage Rate (net of the Servicing Fee
Rate and the Trustee Fee Rate) shall be lower than the highest fixed
Pass-Through Rate (and not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any class of Regular Certificates (other than the Class A-MFL
Certificates and the Class X Certificates) or the Class A-MFL Regular Interest
having a principal balance then outstanding. When a Qualified Substitute
Mortgage Loan is substituted for a deleted Mortgage Loan, the applicable
Mortgage Loan Seller shall certify that the Mortgage Loan meets all of the
requirements of the above definition and shall send such certification to the
Trustee and the Directing Certificateholders.
"Rated Final Distribution Date": As to each Class of Certificates,
February 12, 2051.
"Rating Agency": Each of Xxxxx'x, S&P and Fitch or their successors
in interest, and any other rating agencies rating any Serviced Companion Loan
Securities. If no such rating agency nor any successor thereof remains in
existence, "Rating Agency" shall be deemed to refer to such nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Paying Agent and the Master Servicer, and specific ratings of Xxxxx'x and S&P
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Rating Agency Trigger Event": The reduction of the Swap
Counterparty's long-term ratings below "A3", "A-" or "A-" by Xxxxx'x, S&P or
Fitch, respectively.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class A-M, Class A-MFL,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class P, Class Q, Class T, Class NR,
Class X-1 and Class X-2 Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in Section
11.15.
"Regulation AB Servicing Officer": Any officer or employee of the
Master Servicer or the Special Servicer, as applicable, involved in, or
responsible for, the administration and servicing of the Mortgage Loans or
Companion Loans, or this Agreement and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee and/or the
Paying Agent by the Master Servicer or the Special Servicer, as applicable, as
such list may from time to time be amended.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates or the Class A-MFL Regular Interest, as
applicable, the related Class of Uncertificated Lower-Tier Interests and the
related Components of Class X Certificates; for the following Components of the
Class X Certificates, the related Class of Uncertificated Lower-Tier Interests
and the related Class of Certificates or the Class A-MFL Regular Interest, as
applicable, set forth below; and for the following Classes of Uncertificated
Lower-Tier Interests, the related Components of the Class X Certificates and the
related Class of Certificates or the Class A-MFL Regular Interest, as
applicable, set forth below:
Related Uncertificated Related Components of
Related Certificate Lower-Tier Interest Class X Certificates
------------------------------- -------------------------------------------------- --------------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest XA-1
Class A-2 Certificate Class LA-2-1 Uncertificated Interest XA-2-1
Class LA-2-2 Uncertificated Interest XA-2-2
Class LA-2-3 Uncertificated Interest XA-2-3
Class A-3 Certificate Class LA-3-1 Uncertificated Interest XA-3B-1
Class LA-3-2 Uncertificated Interest XA-3B-2
Class LA-3-3 Uncertificated Interest XA-3B-3
Class LA-3-4 Uncertificated Interest XA-3B-4
Class LA-3-5 Uncertificated Interest XA-3B-5
Class A-4 Certificate Class LA-4-1 Uncertificated Interest XA-4-1
Class LA-4-2 Uncertificated Interest XA-4-2
Class LA-4-3 Uncertificated Interest XA-4-3
Class LA-4-4 Uncertificated Interest XA-4-4
Class LA-4-5 Uncertificated Interest XA-4-5
Class LA-4-6 Uncertificated Interest XA-4-6
Class LA-4-7 Uncertificated Interest XA-4-7
Class LA-4-8 Uncertificated Interest XA-4-8
Class LA-4-9 Uncertificated Interest XA-4-9
Class A-SB Certificate Class LA-SB-1 Uncertificated Interest XA-SB-1
Class LA-SB-2 Uncertificated Interest XA-SB-2
Class LA-SB-3 Uncertificated Interest XA-SB-3
Class LA-SB-4 Uncertificated Interest XA-SB-4
Class LA-SB-5 Uncertificated Interest XA-SB-5
Class LA-SB-6 Uncertificated Interest XA-SB-6
Class LA-SB-7 Uncertificated Interest XA-SB-7
Class A-1A Certificate Class LA-1A-1 Uncertificated Interest XA-1A-1
Class LA-1A-2 Uncertificated Interest XA-1A-2
Class LA-1A-3 Uncertificated Interest XA-1A-3
Class LA-1A-4 Uncertificated Interest XA-1A-4
Class LA-1A-5 Uncertificated Interest XA-1A-5
Class LA-1A-6 Uncertificated Interest XA-1A-6
Class LA-1A-7 Uncertificated Interest XA-1A-7
Class LA-1A-8 Uncertificated Interest XA-1A-8
Class LA-1A-9 Uncertificated Interest XA-1A-9
Class LA-1A-10 Uncertificated Interest XA-1A-10
Class LA-1A-11 Uncertificated Interest XA-1A-11
Class LA-1A-12 Uncertificated Interest XA-1A-12
Class LA-1A-13 Uncertificated Interest XA-1A-13
Class LA-1A-14 Uncertificated Interest XA-1A-14
Class LA-1A-15 Uncertificated Interest XA-1A-15
Class A-M Certificate Class LA-M Uncertificated Interest XA-M
Class A-MFL Certificate Class LA-MFL Uncertificated Interest XA-MFL
Class A-J Certificate Class LA-J Uncertificated Interest XA-J
Class B Certificate Class LB Uncertificated Interest XB
Class C Certificate Class LC Uncertificated Interest XC
Class D Certificate Class LD Uncertificated Interest XD
Class E Certificate Class LE-1 Uncertificated Interest XE-1
Class LE-2 Uncertificated Interest XE-2
Class F Certificate Class LF-1 Uncertificated Interest XF-1
Class LF-2 Uncertificated Interest XF-2
Class G Certificate Class LG-1 Uncertificated Interest XG-1
Class LG-2 Uncertificated Interest XG-2
Class LG-3 Uncertificated Interest XG-3
Class H Certificate Class LH-1 Uncertificated Interest XH-1
Class LH-2 Uncertificated Interest XH-2
Class J Certificate Class LJ-1 Uncertificated Interest XJ-1
Class LJ-2 Uncertificated Interest XJ-2
Class LJ-3 Uncertificated Interest XJ-3
Class K Certificate Class LK-1 Uncertificated Interest XK-1
Class LK-2 Uncertificated Interest XK-2
Class L Certificate Class LL-1 Uncertificated Interest XL-1
Class LL-2 Uncertificated Interest XL-2
Class M Certificate Class LM-1 Uncertificated Interest XM-1
Class LM-2 Uncertificated Interest XM-2
Class N Certificate Class LN Uncertificated Interest XN
Class P Certificate Class LP-1 Uncertificated Interest XP-1
Class LP-2 Uncertificated Interest XP-2
Class Q Certificate Class LQ Uncertificated Interest XQ
Class T Certificate Class LT Uncertificated Interest XT
Class NR Certificate Class LNR-1 Uncertificated Interest XNR-1
Class LNR-2 Uncertificated Interest XNR-2
Class LNR-3 Uncertificated Interest XNR-3
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit X attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Paying Agent, the Master Servicer or the Special
Servicer, the term "Relevant Servicing Criteria" may refer to a portion of the
Relevant Servicing Criteria applicable to the Master Servicer, the Special
Servicer, the Trustee and/or the Paying Agent.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": With respect to each of the Mortgage Loans, a
segregated custodial account or accounts created and maintained by the Special
Servicer pursuant to Section 3.16 on behalf of the Trustee in trust for the
Certificateholders and with respect to any Serviced Whole Loans, in trust for
the related Serviced Companion Noteholders, which shall be entitled "Centerline
Servicing Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of Xxxxx Fargo Bank, N.A., as trustee, in trust for
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20,
REO Account." Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan or Companion Loan deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Loan shall
be deemed to be outstanding for so long as the related REO Property (or
beneficial interest therein, in the case of a Non-Serviced Mortgage Loan)
remains part of the Trust Fund and provides for Assumed Scheduled Payments on
each Due Date therefor, and otherwise has the same terms and conditions as its
predecessor Mortgage Loan or Companion Loan, including, without limitation, with
respect to the calculation of the Mortgage Rate in effect from time to time
(such terms and conditions to be applied without regard to the default on such
predecessor Mortgage Loan or Companion Loan). Each REO Loan shall be deemed to
have an initial outstanding principal balance and Stated Principal Balance equal
to the outstanding principal balance and Stated Principal Balance, respectively,
of its predecessor Mortgage Loan or Companion Loan as of the date of the related
REO Acquisition. All amounts due and owing in respect of the predecessor
Mortgage Loan or Companion Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the Master Servicer, the Special Servicer or the Trustee, as applicable, in
respect of the predecessor Mortgage Loan or Companion Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Special
Servicing Fees and Servicing Fees, additional Trust Fund expenses and any
unreimbursed Advances, together with any interest accrued and payable to the
Master Servicer or the Trustee, as applicable, in respect of such Advances in
accordance with Section 3.03(d) or Section 4.03(d), shall continue to be payable
or reimbursable to the Master Servicer or the Trustee, as applicable, in respect
of an REO Loan. In addition, Unliquidated Advances and Nonrecoverable Advances
with respect to such REO Loan, in each case, that were paid from collections on
the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount" shall be
deemed outstanding until recovered. Collections in respect of each REO Loan
(exclusive of the amounts to be applied to the payment of, or to be reimbursed
to the Master Servicer or the Special Servicer for the payment of unreimbursed
Advances and interest thereon and the costs of operating, managing, selling,
leasing and maintaining the related REO Property) shall be treated: first, as a
recovery of accrued and unpaid interest on such REO Loan at the related Mortgage
Rate in effect from time to time to, but not including, the Due Date in the Due
Period of receipt; second, as a recovery of Unliquidated Advances with respect
to such REO Loan that relate to Servicing Advances and were paid from
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; third, as
a recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; fourth, as a recovery of Nonrecoverable Advances, with
respect to such REO Loan, that relate to Advances and were paid from collections
on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; and fifth,
in accordance with the Servicing Standards, as a recovery of any other amounts
due and owing in respect of such REO Loan, including, without limitation, (i)
Penalty Charges, and (ii) Yield Maintenance Charges, in that order; provided,
that if a Non-Serviced Mortgage Loan and any related Non-Serviced Companion
Loans comprising a Non-Serviced Whole Loan become REO Loans, the treatment of
the foregoing amounts with respect to such Non-Serviced Whole Loan shall be
subject to the terms of the related Non-Serviced Intercreditor Agreement and
Non-Serviced Pooling Agreement and provided, further, that if a Serviced
Mortgage Loan and any related Serviced Companion Loans comprising a Serviced
Whole Loan become REO Loans, the treatment of the foregoing amounts with respect
to such Serviced Whole Loan shall be subject to the terms of the related
Intercreditor Agreement and this Agreement, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement, with respect to a Mortgaged Property
securing a Serviced Whole Loan) and the Trustee (as holder of the Class A-MFL
Regular Interest and the Uncertificated Lower-Tier Interests) (and also
including, if applicable, the Trust Fund's beneficial interest in a Non-Serviced
Mortgaged Property acquired by the Non-Serviced Special Servicer on behalf of,
and in the name of, the Non-Serviced Trustee or a nominee thereof for the
benefit of the certificateholders under the Non-Serviced Trust) through
foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan. References herein to the Special Servicer acquiring,
maintaining, managing, inspecting, insuring, selling or reporting or to
Appraisal Reductions and Final Recovery Determinations with respect to an "REO
Property", shall not include the Trust Fund's beneficial interest in a
Non-Serviced Mortgaged Property. For the avoidance of doubt, REO Property, to
the extent allocable to a Companion Loan, shall not be an asset of the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": The Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or any Servicing Function Participant engaged by such
parties as the case may be.
"Request for Release": A release signed by a Servicing Officer of
the Master Servicer or the Special Servicer, as applicable, in the form of
Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Paying Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee and the Paying Agent, and with respect to any successor Trustee
or the Paying Agent, any officer or assistant officer in the corporate trust
department of the successor Trustee or Paying Agent or any other officer of the
successor Trustee or Paying Agent customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee or the Paying Agent because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchaser and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Retained Fee Rate": An amount equal to 0.005% per annum.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If neither S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master Servicer and the Special Servicer and
specific ratings of S&P herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.05(a).
"Sawgrass Xxxxx Mall A-1 Pari Passu Companion Loan": With respect to
the Sawgrass Xxxxx Mall Whole Loan, the related promissory note made by the
related mortgagor and secured by the Mortgage on the Sawgrass Xxxxx Mall
Mortgaged Property and designated as promissory Note A-1, which is not included
in the Trust and which is pari passu in right of payment to the Sawgrass Xxxxx
Mall Mortgage Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall A-3 Pari Passu Companion Loan": With respect to
the Sawgrass Xxxxx Mall Whole Loan, the related promissory note made by the
related mortgagor and secured by the Mortgage on the Sawgrass Xxxxx Mall
Mortgaged Property and designated as promissory Note A-3, which is not included
in the Trust and which is pari passu in right of payment to the Sawgrass Xxxxx
Mall Mortgage Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall A-4 Pari Passu Companion Loan": With respect to
the Sawgrass Xxxxx Mall Whole Loan, the related promissory note made by the
related mortgagor and secured by the Mortgage on the Sawgrass Xxxxx Mall
Mortgaged Property and designated as promissory Note A-4, which is not included
in the Trust and which is pari passu in right of payment to the Sawgrass Xxxxx
Mall Mortgage Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall A-5 Pari Passu Companion Loan": With respect to
the Sawgrass Xxxxx Mall Whole Loan, the related promissory note made by the
related mortgagor and secured by the Mortgage on the Sawgrass Xxxxx Mall
Mortgaged Property and designated as promissory Note A-5, which is not included
in the Trust and which is pari passu in right of payment to the Sawgrass Xxxxx
Mall Mortgage Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall B-1 Subordinate Companion Loan": With respect
to the Sawgrass Xxxxx Mall Whole Loan, the related promissory note made by the
related mortgagor and secured by the Mortgage on the Sawgrass Xxxxx Mall
Mortgaged Property and designated as promissory Note B-1, which is not included
in the Trust and which is subordinate in right of payment to the Sawgrass Xxxxx
Mall Mortgage Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall B-2 Subordinate Companion Loan": With respect
to the Sawgrass Xxxxx Mall Whole Loan, the related promissory note made by the
related mortgagor and secured by the Mortgage on the Sawgrass Xxxxx Mall
Mortgaged Property and designated as promissory Note B-2, which is not included
in the Trust and which is subordinate in right of payment to the Sawgrass Xxxxx
Mall Mortgage Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall B-3 Subordinate Companion Loan": With respect
to the Sawgrass Xxxxx Mall Whole Loan, the related promissory note made by the
related mortgagor and secured by the Mortgage on the Sawgrass Xxxxx Mall
Mortgaged Property and designated as promissory Note B-3, which is not included
in the Trust and which is subordinate in right of payment to the Sawgrass Xxxxx
Mall Mortgage Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall Companion Loans": Collectively, the Sawgrass
Xxxxx Mall Pari Passu Companion Loans and the Sawgrass Xxxxx Mall Subordinate
Companion Loans.
"Sawgrass Xxxxx Mall Intercreditor Agreement": That certain
Intercreditor Agreement among the noteholders, dated as of August 22, 2007, by
and among the holders of the Sawgrass Xxxxx Mall Companion Loans and the holder
of the Sawgrass Xxxxx Mall Mortgage Loan, relating to the relative rights of
such holders of the Sawgrass Xxxxx Mall Whole Loan, as the same may be further
amended in accordance with the terms thereof.
"Sawgrass Xxxxx Mall Majority Holder": With respect to the Sawgrass
Xxxxx Mall Whole Loan, the "Controlling Holder" as defined in the Sawgrass Xxxxx
Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall Master Servicer": The Master Servicer under the
0000-XXX00 Xxxxxxx Agreement, which as of the date hereof is Xxxxx Fargo Bank,
N.A.
"Sawgrass Xxxxx Mall Mortgage Loan": With respect to the Sawgrass
Xxxxx Mall Whole Loan, the Mortgage Loan that is included in the Trust
(identified as Mortgage Loan No. 4 on the Mortgage Loan Schedule), which is
designated as promissory note A-2 and is pari passu in right of payment with the
Sawgrass Xxxxx Mall Pari Passu Companion Loans and senior in right of payment
with the Sawgrass Xxxxx Mall Subordinate Companion Loans, to the extent set
forth in the Sawgrass Xxxxx Mall Intercreditor Agreement.
"Sawgrass Xxxxx Mall Mortgaged Property": The Mortgaged Property
that secures the Sawgrass Xxxxx Mall Whole Loan.
"Sawgrass Xxxxx Mall Pari Passu Companion Loans": Collectively, the
Sawgrass Xxxxx Mall A-1 Pari Passu Companion Loan, the Sawgrass Xxxxx Mall A-3
Pari Passu Companion Loan, the Sawgrass Xxxxx Mall A-4 Pari Passu Companion Loan
and the Sawgrass Xxxxx Mall A-5 Pari Passu Companion Loan.
"Sawgrass Xxxxx Mall Special Servicer": The "Special Servicer" under
the 0000-XXX00 Xxxxxxx Agreement, which as of the date hereof is X.X. Xxxxxxx
Company, Inc.
"Sawgrass Xxxxx Mall Subordinate Companion Loans": Collectively, the
Sawgrass Xxxxx Mall B-1 Subordinate Companion Loan, the Sawgrass Xxxxx Mall B-2
Subordinate Companion Loan and the Sawgrass Xxxxx Mall B-3 Subordinate Companion
Loan.
"Sawgrass Xxxxx Mall Trust": The X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2007-LDP12, which is administered pursuant to the
0000-XXX00 Xxxxxxx Agreement.
"Sawgrass Xxxxx Mall Trustee": The "Trustee" under the 0000-XXX00
Xxxxxxx Agreement, which as of the date hereof is LaSalle Bank National
Association.
"Sawgrass Xxxxx Mall Whole Loan": The Sawgrass Xxxxx Mall Mortgage
Loan, together with the Sawgrass Xxxxx Mall Companion Loans, each of which is
secured by the same Mortgage on the Sawgrass Xxxxx Mall Mortgaged Property.
References herein to the Sawgrass Xxxxx Mall Whole Loan shall be construed to
refer to the aggregate indebtedness under the Sawgrass Xxxxx Mall Mortgage Loan
and the Sawgrass Xxxxx Mall Companion Loans.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments) due in respect
of such Mortgage Loans during or, if and to the extent not previously received
or advanced pursuant to Section 4.03 in respect of a preceding Distribution
Date, prior to, the related Due Period, and all Assumed Scheduled Payments for
the related Due Period, in each case to the extent either (i) paid by the
Mortgagor as of the Determination Date (or, with respect to each Mortgage Loan
with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the Master Servicer as of the Business Day
preceding the related P&I Advance Date) (and not previously distributed to
Certificateholders) or (ii) advanced by the Master Servicer or the Trustee, as
applicable, pursuant to Section 4.03 in respect of such Distribution Date, and
(b) all Balloon Payments to the extent received on or prior to the related
Determination Date (or, with respect to each Mortgage Loan with a Due Date
occurring or a grace period ending after the related Determination Date, the
related Due Date or last day of such grace period, as applicable, to the extent
received by the Master Servicer as of the Business Day preceding the related P&I
Advance Date), and to the extent not included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Serviced Companion Loan": Each of the Xxxxxxxxx Plaza Companion
Loans and the Gurnee Xxxxx Xxxx Passu Companion Loan, as applicable.
"Serviced Companion Loan Securities": Any class of securities
backed, wholly or partially, by any Serviced Pari Passu Companion Loan.
"Serviced Companion Noteholder": Each of the holders of the
Xxxxxxxxx Plaza Companion Loans and the holder of the Gurnee Xxxxx Xxxx Passu
Companion Loan, as applicable.
"Serviced Companion Note": Each of the Xxxxxxxxx Plaza Companion
Notes and the Gurnee Xxxxx Companion Note, as applicable.
"Serviced Mortgage Loan": Each of the Xxxxxxxxx Plaza Mortgage Loan
and the Gurnee Xxxxx Mortgage Loan, as applicable.
"Serviced Notes": Each of the Xxxxxxxxx Plaza Notes and the Gurnee
Xxxxx Notes, as applicable.
"Serviced Pari Passu Companion Loan": Each of the Xxxxxxxxx Plaza
Pari Passu Companion Loan and the Gurnee Xxxxx Xxxx Passu Companion Loan.
"Serviced Securitized Companion Loan": Any Companion Loan that is a
component of a Serviced Whole Loan, if and for so long as each such companion
mortgage loan is included in a Regulation AB Companion Loan Securitization.
"Serviced Subordinate Companion Loan": The Xxxxxxxxx Plaza
Subordinate Companion Loan.
"Serviced Whole Loan": Each of the Xxxxxxxxx Plaza Whole Loan and
the Gurnee Xxxxx Whole Loan, as applicable.
"Serviced Whole Loan Controlling Holder": Each of the Xxxxxxxxx
Plaza Majority Holder and the Gurnee Xxxxx Majority Holder.
"Serviced Whole Loan Remittance Date": With respect to each Serviced
Companion Loan, the day that is two (2) Business Days prior to the related
distribution date for each Other Securitization that includes such Serviced
Companion Loan, following receipt by the Master Servicer from the related
Serviced Whole Loan borrower of all payments received with respect to and
allocable to such Serviced Whole Loan.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Master Servicer, the Special Servicer or
the Trustee, as applicable, in connection with the servicing and administering
of (a) a Mortgage Loan (other than a Non-Serviced Mortgage Loan) (and in the
case of a Serviced Mortgage Loan, the related Serviced Companion Loans) in
respect of which a default, delinquency or other unanticipated event has
occurred or as to which a default is reasonably foreseeable or (b) an REO
Property, including (in the case of each of such clause (a) and clause (b)), but
not limited to, (x) the cost of (i) compliance with the Master Servicer's
obligations set forth in Section 3.03(c), (ii) the preservation, restoration and
protection of a Mortgaged Property, (iii) obtaining any Insurance and
Condemnation Proceeds or any Liquidation Proceeds of the nature described in
clauses (i)-(iv) of the definition of "Liquidation Proceeds," (iv) any
enforcement or judicial proceedings with respect to a Mortgaged Property,
including foreclosures and (v) the operation, leasing, management, maintenance
and liquidation of any REO Property and (y) any amount specifically designated
herein to be paid as a "Servicing Advance". Notwithstanding anything to the
contrary, "Servicing Advances" shall not include allocable overhead of the
Master Servicer or the Special Servicer, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses or costs and expenses incurred by any
such party in connection with its purchase of a Mortgage Loan or REO Property.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time and which as
of the Closing Date are listed on Exhibit X hereto.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the Master Servicer pursuant to the first
paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the Master Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan, (a) the Stated Principal Balance of such Mortgage Loan
as of the end of the immediately preceding Due Period and (b) the difference
between the Servicing Fee Rate for such Mortgage Loan over the servicing fee
rate (if any) applicable to such Mortgage Loan as specified in any Sub-Servicing
Agreement related to such Mortgage Loan. With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated Principal Balance of such Mortgage Loan as of the end of the immediately
preceding Due Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan (and with respect to a Non-Serviced Mortgage Loan, solely for purposes of
calculating the Administrative Cost Rate under this Agreement and not for
calculating the Servicing Fee), a rate equal to the per annum rate set forth on
the Mortgage Loan Schedule under the heading "Servicing Fee Rate," in each case
computed on the basis of the Stated Principal Balance of the related Mortgage
Loan. With respect to each Companion Loan, the rate payable to the Master
Servicer with respect to the related Mortgage Loan to the extent not
inconsistent with the related Intercreditor Agreement. Other than for purposes
of calculating the Administrative Cost Rate under this Agreement, the "Servicing
Fee Rate" (to be used to calculate the Servicing Fee payable to the Master
Servicer hereunder) with respect to a Non-Serviced Mortgage Loan is 0.01% per
annum (and the related Non-Serviced Master Servicer will be entitled to a
primary servicing fee with respect to such Non-Serviced Mortgage Loan based on a
rate of 0.01% per annum), and for the purposes of calculating the Administrative
Cost Rate under this Agreement, the "Servicing Fee Rate" with respect to a
Non-Serviced Mortgage Loan is 0.01% per annum.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on or before the Closing Date and the applicable reference to Servicing
File relates to any period after the Closing Date) delivered by the related
Mortgage Loan Seller to the Master Servicer: (i) a copy of any engineering
reports or property condition reports; (ii) other than with respect to a hotel
property (except with respect to tenanted commercial space within a hotel
property), copies of a rent roll and, for any office, retail, industrial or
warehouse property, a copy of all leases and estoppels and subordination and
non-disturbance agreements delivered to the Mortgage Loan Seller; (iii) copies
of related financial statements or operating statements; (iv) all legal opinions
(excluding attorney-client communications between any Mortgage Loan Seller and
its counsel that are privileged communications or constitute legal or other due
diligence analyses), Mortgagor's Certificates and certificates of hazard
insurance and/or hazard insurance policies or other applicable insurance
policies, if any, delivered in connection with the closing of the Mortgage Loan;
(v) a copy of the Appraisal for the related Mortgaged Property(ies); (vi) the
documents that were delivered by or on behalf of the Mortgagor, which documents
were required to be delivered in connection with the closing of such Mortgage
Loan; (vii) for any Mortgage Loan that the related Mortgaged Property is leased
to a single tenant, a copy of the lease; and (viii) a copy of all environmental
reports that were received by the applicable Mortgage Loan Seller relating to
the relevant Mortgaged Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer, the Trustee and the Paying Agent, that is performing
activities that address the Servicing Criteria, unless (i) such Person's
activities relate only to 5% or less of the Mortgage Loans or (ii) the Depositor
reasonably determines that a Master Servicer, the Special Servicer, the Trustee
or the Paying Agent may, for the purposes of the Exchange Act reporting
requirements pursuant to applicable Commission guidance, take responsibility for
the assessment of compliance with the Servicing Criteria of such Person. The
Servicing Function Participants as of the Closing Date are listed on Exhibit DD
hereto. Exhibit DD shall be updated and provided to the Depositor and the Paying
Agent in accordance with Section 11.10(c).
"Servicing Officer": Any officer and/or employee of the Master
Servicer, the Special Servicer or any Additional Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans (and in
the case of a Serviced Mortgage Loan, any related Serviced Companion Loans),
whose name and specimen signature appear on a list of servicing officers
furnished by the Master Servicer, the Special Servicer or any Additional
Servicer to the Paying Agent, the Trustee and the Depositor on the Closing Date
as such list may be amended from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than a Non-Serviced Mortgage Loan) or Companion Loan, the occurrence of any of
the following events:
(i) with respect to a Mortgage Loan or Companion Loan that is
not a Balloon Mortgage Loan, (a) a payment default shall have
occurred at its original Maturity Date, or (b) if the original
Maturity Date of such Mortgage Loan or Companion Loan has been
extended as provided herein, a payment default shall have occurred
at such extended Maturity Date; or
(ii) in the case of a Balloon Payment, such payment is
delinquent and the related Mortgagor has not provided the Master
Servicer on or prior to the related Maturity Date (or, with the
consent of the Directing Certificateholder, the 60th day after the
related Maturity Date with respect to a Mortgage Loan where the
Mortgagor has continued to make its Assumed Scheduled Payments and
is diligently pursuing refinancing) with a bona fide written
commitment for refinancing, reasonably satisfactory in form and
substance to such Master Servicer, which provides that such
refinancing will occur within 120 days after the Maturity Date,
provided that the Mortgage Loan will become a Specially Serviced
Mortgage Loan immediately if the related Mortgagor fails to
diligently pursue such financing or to pay any Assumed Scheduled
Payment on the related Due Date (subject to any applicable grace
period) at any time before the refinancing or, if such refinancing
does not occur within such 120 day period, the related Mortgage Loan
will become a Specially Serviced Mortgage Loan at the end of such
120 day period (or at the end of any shorter period beyond the date
on which that Balloon Payment was due within which the refinancing
is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent (unless, in the case of the Xxxxxxxxx
Plaza Mortgage Loan or Mortgage Loan with mezzanine debt, prior to
such Monthly Payment becoming more than 60 days delinquent the
holder of the related Companion Loan or mezzanine debt cures such
delinquency, subject to the terms and provisions of the related
Intercreditor Agreement); or
(iv) the Master Servicer or the Special Servicer (in the case
of the Special Servicer, with the consent of the Directing
Certificateholder), as the case may be, makes a judgment that a
payment default is imminent and is not likely to be cured by the
related Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto and any such fees actually paid shall be reimbursed by the
Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the Master Servicer or the Special
Servicer, as applicable, has notice (other than a failure by such
Mortgagor to pay principal or interest) and which the Master
Servicer or Special Servicer (in the case of the Special Servicer,
with Directing Certificateholder consent) determines in its good
faith reasonable judgment may materially and adversely affect the
interests of the Certificateholders (or, with respect to a Serviced
Mortgage Loan, the interests of the related Serviced Companion
Noteholders), if applicable, has occurred and remained unremedied
for the applicable grace period specified in the related Mortgage
Loan or Companion Loan documents, other than the failure to maintain
terrorism insurance if such failure constitutes an Acceptable
Insurance Default (or if no grace period is specified for those
defaults which are capable of cure, 60 days); or
(ix) the Master Servicer or the Special Servicer has received
notice of the foreclosure or proposed foreclosure of any lien other
than the Mortgage on the related Mortgaged Property; or
(x) the Master Servicer or Special Servicer (in the case of
the Special Servicer, with the consent of the Directing
Certificateholder) determines that (i) a default (other than as
described in clause (iv) above) under the Mortgage Loan or Companion
Loan is imminent, (ii) such default will materially impair the value
of the corresponding Mortgaged Property as security for the Mortgage
Loan and Companion Loan (if any) or otherwise materially adversely
affect the interests of Certificateholders (or, with respect to a
Serviced Mortgage Loan, the interests of the related Serviced
Companion Noteholders), and (iii) the default will continue
unremedied for the applicable cure period under the terms of the
Mortgage Loan or Companion Loan or, if no cure period is specified
and the default is capable of being cured, for 30 days (provided
that such 30-day grace period does not apply to a default that gives
rise to immediate acceleration without application of a grace period
under the terms of the Mortgage Loan or Companion Loan); provided
that any determination that a Servicing Transfer Event has occurred
under this clause (x) with respect to any Mortgage Loan or Companion
Loan solely by reason of the failure (or imminent failure) of the
related Mortgagor to maintain or cause to be maintained insurance
coverage against damages or losses arising from acts of terrorism
may only be made by the Special Servicer (with the consent of the
Directing Certificateholder);
provided, if any Companion Loan becomes a Specially Serviced Mortgage Loan, the
related AB Mortgage Loan, shall also become a Specially Serviced Mortgage Loan.
If any AB Mortgage Loan becomes a Specially Serviced Mortgage Loan, the related
Companion Loan shall become a Specially Serviced Mortgage Loan. If any Serviced
Companion Loan becomes a Specially Serviced Mortgage Loan, the related Serviced
Mortgage Loan shall also become a Specially Serviced Mortgage Loan. If a
Serviced Mortgage Loan becomes a Specially Serviced Mortgage Loan, the related
Serviced Companion Loans shall become Specially Serviced Mortgage Loans. If any
Mortgage Loan in a Crossed Group becomes a Specially Serviced Mortgage Loan,
each other Mortgage Loan in such Crossed Group shall also become a Specially
Serviced Mortgage Loan.
With respect to a Non-Serviced Mortgage Loan, the occurrence of a
"Servicing Transfer Event" shall be as defined in the Non-Serviced Pooling
Agreement.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class
X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class T and Class
NR Certificates or, with respect to such Classes of Certificates an assignment
of the voting rights thereof; provided, however, that the Certificate Balances
of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class A -1A,
Class A-M, Class A-MFL and Class A-J Certificates have been retired.
"Special Servicer": With respect each of the Mortgage Loans,
Centerline Servicing Inc., a Delaware corporation, and its successors in
interest and assigns, or any successor Special Servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan (other than a Non-Serviced Mortgage Loan), the fee
payable to the Special Servicer pursuant to the first paragraph of Section
3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan (other than a Non-Serviced Mortgage
Loan), 0.25000% per annum computed on the basis of the Stated Principal Balance
of the related Mortgage Loan (including any REO Loan) or Companion Loan (if
provided for under the related Intercreditor Agreement) in the same manner as
interest is calculated on the Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced
by the Master Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date (or in the case of a
Qualified Substitute Mortgage Loan, the Due Date in the related
month of substitution); and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation or a
modification of such Mortgage Loan pursuant to the terms and
provisions of this Agreement that occurred prior to the end of the
Due Period for the most recent Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or an REO Loan that is a successor to a Mortgage
Loan shall be deemed to be part of the Trust Fund and to have an outstanding
Stated Principal Balance until the Distribution Date on which the payments or
other proceeds, if any, received in connection with a Liquidation Event in
respect thereof are to be (or, if no such payments or other proceeds are
received in connection with such Liquidation Event, would have been) distributed
to Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.
"Subordinate Certificate": Any Class A-M, Class A-MFL (through the
Class A-MFL Regular Interest), Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class T or Class NR Certificate.
"Sub-Servicer": Any Person that services Mortgage Loans on behalf of
the Master Servicer, the Special Servicer or an Additional Servicer and is
responsible for the performance (whether directly or through Sub-Servicers or
Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Master Servicer, the Special Servicer or an
Additional Servicer under this Agreement, with respect to some or all of the
Mortgage Loans, that are identified in Item 1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage
Loans, the Substitution Shortfall Amount shall be determined as provided in the
preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the related Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Surviving Entity": As defined in Section 6.02(b).
"Swap Contract": The 1992 ISDA Master Agreement, together with the
related schedule, confirmation and any annexes thereto, dated as of September
28, 2007, by and among the Swap Counterparty and the Trustee, solely in its
capacity as Trustee, on behalf of the Trust (a copy of which is attached hereto
as Exhibit GG).
"Swap Counterparty": JPMorgan Chase Bank, National Association,
acting in such capacity, or its successor in interest.
"Swap Counterparty Collateral Account": The trust account or
accounts created and maintained as a separate account or accounts by the Paying
Agent pursuant to Section 3.32, which shall be entitled "Xxxxx Fargo Bank, N.A.,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 Class A-MFL Certificates (subject
to the rights of the Swap Counterparty as provided in the Swap Contract), Swap
Counterparty Collateral Account," and which must be an Eligible Account (or a
subaccount of an Eligible Account). The Swap Counterparty Collateral Account
shall not be an asset of either the Lower-Tier REMIC, the Upper-Tier REMIC or
the Grantor Trust formed hereunder.
"Swap Default": (a) Any failure on the part of the Swap Counterparty
to (i) make a required payment under the Swap Contract or (ii) either (a) post
acceptable collateral or find an acceptable replacement Swap Counterparty after
a Rating Agency Trigger Event has occurred as required by Part 1, paragraph (k)
of the Schedule to the Master Agreement in the Swap Contract or (b) an early
termination date is designated under the Swap Contract in accordance with its
terms.
"Swap Termination Fees": Any fees or expenses payable by the Swap
Counterparty to the Trust in connection with a Swap Default, termination of the
Swap Contract or liquidation of the Swap Contract, as specified in the Swap
Contract.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 3.11(a), the amount by which the Servicing Fee
otherwise payable to the Master Servicer hereunder exceeds the sum of (i) the
Primary Servicing Fee and (ii) the amount of the Servicing Fee calculated using
the Retained Fee Rate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
The Trust shall be named: "X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-CIBC20".
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto (subject to, in the case of a Serviced Whole Loan, the interests of the
related Serviced Companion Noteholders in the related Mortgage File); (ii) all
scheduled or unscheduled payments on or collections in respect of the Mortgage
Loans due after the Cut-off Date (or with respect to a Qualified Substitute
Mortgage Loan, the Due Date in the month of substitution); (iii) any REO
Property (to the extent of the Trust Fund's interest therein) or the Trust
Fund's beneficial interest in the Mortgaged Property securing a Non-Serviced
Whole Loan acquired under the related Non-Serviced Pooling Agreement; (iv) all
revenues received in respect of any REO Property (to the extent of the Trust
Fund's interest therein); (v) the Master Servicer's, the Special Servicer's and
the Trustee's rights under the insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to this Agreement and any proceeds
thereof (to the extent of the Trust Fund's interest therein); (vi) any
Assignments of Leases and any security agreements (to the extent of the Trust
Fund's interest therein); (vii) any letters of credit, indemnities, guaranties
or lease enhancement policies given as additional security for any Mortgage
Loans (to the extent of the Trust Fund's interest therein); (viii) all assets
deposited in the Servicing Accounts (to the extent of the Trust Fund's interest
therein), amounts on deposit in the Certificate Account, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Floating Rate
Account, the Interest Reserve Account, the Gain-on-Sale Reserve Account (to the
extent of the Trust Fund's interest in such Gain-on-Sale Reserve Account) and
any REO Account (to the extent of the Trust Fund's interest in such REO
Account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies of the Depositor under each Mortgage Loan
Purchase Agreement (to the extent transferred to the Trustee); (xi) the
Uncertificated Lower-Tier Interests and the Class A-MFL Regular Interest; (xii)
the Swap Contract; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Mortgagor).
"Trustee": Xxxxx Fargo Bank, N.A., a national banking association,
in its capacity as trustee and its successors in interest, or any successor
Trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent fee. No portion of the Trustee Fee shall be calculated by reference
to any Companion Loan or the principal balance of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.00074% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
fee rate.
"Trustee's Direction": As defined in Section 7.01(a).
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1, Class
LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-3-1, Class LA-3-2, Class LA-3-3,
Class LA-3-4, Class LA-3-5, Class LA-4-1, Class LA-4-2, Class LA-4-3, Class
LA-4-4, Class LA-4-5, Class LA-4-6, Class LA-4-7, Class LA-4-8, Class LA-4-9,
Class LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class LA-SB-5, Class
LA-SB-6, Class LA-SB-7, Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class
LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14, Class LA-1A-15, Class LA-M, Class LA-MFL, Class LA-J, Class LB, Class
LC, Class LD, Class LE-1, Class LE-2, Class LF-1, Class LF-2, Class LG-1, Class
LG-2, Class LG-3, Class LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LJ-3,
Class LK-1, Class LK-2, Class LL-1, Class LL-2, Class LM-1, Class LM-2, Class
LN, Class LP-1, Class LP-2, Class LQ, Class LT, Class LNR-1, Class LNR-2 and
Class LNR-3 Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., CIBC World Markets
Corp., Credit Suisse Securities (USA) LLC and Xxxxxx Brothers Inc.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the Determination
Date and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to such Mortgage Loans and any REO Loans on or prior to
the related Determination Date, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A., as Paying
Agent, in trust for the registered Holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC20, Upper-Tier Distribution Account." Any such
account or accounts shall be an Eligible Account (or a subaccount of the
Distribution Account).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"USFS Industrial Distribution Portfolio A-1 Pari Passu Companion
Loan": With respect to the USFS Industrial Distribution Portfolio Whole Loan,
the related promissory note made by the related mortgagor and secured by the
Mortgage on the USFS Industrial Distribution Portfolio Mortgaged Property and
designated as promissory Note A-1, which is not included in the Trust and which
is pari passu in right of payment to the USFS Industrial Distribution Portfolio
Mortgage Loan to the extent set forth in the related Mortgage Loan documents and
as provided in the USFS Industrial Distribution Portfolio Intercreditor
Agreement.
"USFS Industrial Distribution Portfolio A-2 Pari Passu Companion
Loan": With respect to the USFS Industrial Distribution Portfolio Whole Loan,
the related promissory note made by the related mortgagor and secured by the
Mortgage on the USFS Industrial Distribution Portfolio Mortgaged Property and
designated as promissory Note A-2, which is not included in the Trust and which
is pari passu in right of payment to the USFS Industrial Distribution Portfolio
Mortgage Loan to the extent set forth in the related Mortgage Loan documents and
as provided in the USFS Industrial Distribution Portfolio Intercreditor
Agreement.
"USFS Industrial Distribution Portfolio A-3 Pari Passu Companion
Loan": With respect to the USFS Industrial Distribution Portfolio Whole Loan,
the related promissory note made by the related mortgagor and secured by the
Mortgage on the USFS Industrial Distribution Portfolio Mortgaged Property and
designated as promissory Note A-3, which is not included in the Trust and which
is pari passu in right of payment to the USFS Industrial Distribution Portfolio
Mortgage Loan to the extent set forth in the related Mortgage Loan documents and
as provided in the USFS Industrial Distribution Portfolio Intercreditor
Agreement.
"USFS Industrial Distribution Portfolio A-5 Pari Passu Companion
Loan": With respect to the USFS Industrial Distribution Portfolio Whole Loan,
the related promissory note made by the related mortgagor and secured by the
Mortgage on the USFS Industrial Distribution Portfolio Mortgaged Property and
designated as promissory Note A-5, which is not included in the Trust and which
is pari passu in right of payment to the USFS Industrial Distribution Portfolio
Mortgage Loan to the extent set forth in the related Mortgage Loan documents and
as provided in the USFS Industrial Distribution Portfolio Intercreditor
Agreement.
"USFS Industrial Distribution Portfolio A-6 Pari Passu Companion
Loan": With respect to the USFS Industrial Distribution Portfolio Whole Loan,
the related promissory note made by the related mortgagor and secured by the
Mortgage on the USFS Industrial Distribution Portfolio Mortgaged Property and
designated as promissory Note A-6, which is not included in the Trust and which
is pari passu in right of payment to the USFS Industrial Distribution Portfolio
Mortgage Loan to the extent set forth in the related Mortgage Loan documents and
as provided in the USFS Industrial Distribution Portfolio Intercreditor
Agreement.
"USFS Industrial Distribution Portfolio Intercreditor Agreement":
That certain Intercreditor Agreement among the noteholders, dated as of July 3,
2007, by and among the holders of the USFS Industrial Distribution Portfolio
Pari Passu Companion Loans and the holder of the USFS Industrial Distribution
Portfolio Mortgage Loan, relating to the relative rights of such holders of the
USFS Industrial Distribution Portfolio Whole Loan, as the same may be further
amended in accordance with the terms thereof.
"USFS Industrial Distribution Portfolio Majority Holder": With
respect to the USFS Industrial Distribution Portfolio Whole Loan, the
"Controlling Note Holder" as defined in the USFS Industrial Distribution
Portfolio Intercreditor Agreement.
"USFS Industrial Distribution Portfolio Master Servicer": The Master
Servicer under the COMM 2007-C9 Pooling Agreement, which as of the date hereof
is KeyCorp Real Estate Capital Markets, Inc.
"USFS Industrial Distribution Portfolio Mortgage Loan": With respect
to the USFS Industrial Distribution Portfolio Whole Loan, the Mortgage Loan that
is included in the Trust (identified as Mortgage Loan No. 14 on the Mortgage
Loan Schedule), which is designated as promissory note A-4 and is pari passu in
right of payment with the USFS Industrial Distribution Portfolio Pari Passu
Companion Loans to the extent set forth in the USFS Industrial Distribution
Portfolio Intercreditor Agreement.
"USFS Industrial Distribution Portfolio Mortgaged Property": The
Mortgaged Property that secures the USFS Industrial Distribution Portfolio Whole
Loan.
"USFS Industrial Distribution Portfolio Pari Passu Companion Loans":
Collectively, the USFS Industrial Distribution Portfolio A-1 Pari Passu
Companion Loan, the USFS Industrial Distribution Portfolio A-2 Pari Passu
Companion Loan, the USFS Industrial Distribution Portfolio A-3 Pari Passu
Companion Loan, the USFS Industrial Distribution Portfolio A-5 Pari Passu
Companion Loan and the USFS Industrial Distribution Portfolio A-6 Pari Passu
Companion Loan.
"USFS Industrial Distribution Portfolio Notes": The USFS Industrial
Distribution Portfolio Mortgage Loan and the USFS Industrial Distribution
Portfolio Pari Passu Companion Loans.
"USFS Industrial Distribution Portfolio Special Servicer": The
"Special Servicer" under the COMM 2007-C9 Pooling Agreement, which as of the
date hereof is LNR Partners, Inc.
"USFS Industrial Distribution Portfolio Trust": The COMM 2007-C9
Mortgage Trust, which is administered pursuant to the COMM 2007-C9 Pooling
Agreement.
"USFS Industrial Distribution Portfolio Trustee": The "Trustee"
under the COMM 2007-C9 Pooling Agreement, which as of the date hereof is Xxxxx
Fargo Bank, N.A.
"USFS Industrial Distribution Portfolio Whole Loan": The USFS
Industrial Distribution Portfolio Mortgage Loan, together with the USFS
Industrial Distribution Portfolio Pari Passu Companion Loans, each of which is
secured by the same Mortgage on the USFS Industrial Distribution Portfolio
Mortgaged Property. References herein to the USFS Industrial Distribution
Portfolio Whole Loan shall be construed to refer to the aggregate indebtedness
under the USFS Industrial Distribution Portfolio Mortgage Loan and the USFS
Industrial Distribution Portfolio Pari Passu Companion Loans.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata, between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts) and (ii) in the case of
any other Class of Regular Certificates (other than the Class X Certificates) a
percentage equal to the product of 96% and a fraction, the numerator of which is
equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates (other than the Class X Certificates), each determined as
of the Distribution Date immediately preceding such time. None of the Class R
Certificates and the Class LR Certificates will be entitled to any Voting
Rights. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates. Appraisal Reductions shall
not result in a change in the Class Voting Rights of any Class of Regular
Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"WHFIT": A "Widely Held Fixed Investment Trust," as that term is
defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
"WHFIT Regulations": Treasury Regulations Section 1.671-5, as
amended.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) is not reimbursed to the Person who made such Advance
on or before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan (other than with respect to a Non-Serviced Mortgage
Loan).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan, a
fee of 1.00% of each collection (other than Penalty Charges) of interest and
principal (other than any amount for which a Liquidation Fee would be paid),
including (i) Monthly Payments, (ii) Balloon Payments and (iii) payments (other
than those included in clause (i) or (ii) of this definition) at maturity,
received on each Corrected Mortgage Loan for so long as it remains a Corrected
Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in
the Mortgage Loan documents) provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the
date such payment is actually received by the Master Servicer, the
Special Servicer, the Paying Agent or the Trustee; provided,
however, that for purposes of calculating distributions on the
Certificates, Principal Prepayments with respect to any Mortgage
Loan are deemed to be received on the date they are applied in
accordance with the Servicing Standards consistent with the terms of
the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates (other than the Class X and Residual Certificates) or
the Class A-MFL Regular Interest (and correspondingly, the Class
A-MFL Certificates) on or as of a Distribution Date shall refer to
the Certificate Balance of such Class of Certificates (other than
the Class X and Residual Certificates) or the Class A-MFL Regular
Interest (and correspondingly, the Class A-MFL Certificates) on such
Distribution Date after giving effect to (a) any distributions made
on such Distribution Date pursuant to Section 4.01(a), (b) any
Collateral Support Deficit allocated to such Class of Certificates
(other than the Class X and Residual Certificates) or the Class
A-MFL Regular Interest (and correspondingly, the Class A-MFL
Certificates) on the immediately preceding Distribution Date
pursuant to Section 4.04, (c) the addition of any Certificate
Deferred Interest allocated to such Class of Certificates (other
than the Class X and Residual Certificates) or the Class A-MFL
Regular Interest (and correspondingly, the Class A-MFL Certificates)
and added to such Certificate Balance pursuant to Section 4.06(b)
and (d) any recoveries on the related Mortgage Loan of
Nonrecoverable Advances (plus interest thereon) that were previously
reimbursed from principal collections on the Mortgage Loans that
resulted in a reduction of the Principal Distribution Amount, Loan
Group 1 Principal Distribution Amount or Loan Group 2 Principal
Distribution Amount, which recoveries are allocated to such Class of
Certificates or the Class A-MFL Regular Interest and added to the
Certificate Balance pursuant to Section 4.04(a). The Certificate
Balance of the Class A-MFL Certificates shall be equal to the
Certificate Balance of the Class A-MFL Regular Interest at all
times, and any reductions or increases in the Certificate Balance of
the Class A-MFL Regular Interest shall result in a corresponding
reduction or increase, as applicable, of the Certificate Balance of
the Class A-MFL Certificates.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-MFL Regular
Interest and the Uncertificated Lower-Tier Interests) all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on
the Mortgage Loan Schedule, (ii) Sections 1, 2, 3, 4, 5, 6(a) (excluding clause
(viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17,
18 and 19 of each of the Mortgage Loan Purchase Agreements, (iii) the
Intercreditor Agreements, and (iv) all other assets included or to be included
in the Trust Fund. Such assignment includes all interest and principal received
or receivable on or with respect to the Mortgage Loans (other than (i) payments
of principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off
Date; and (iii) with respect to those Mortgage Loans that were closed in August
2007 but have their first Due Date in October 2007, any interest amounts
relating to the period prior to the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 12.07, is intended by the parties to constitute a sale.
In connection with the assignment to the Trustee of Sections 1, 2, 3, 4, 5, 6(a)
(excluding clause (viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11,
13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan Purchase Agreements, it
is intended that the Trustee get the benefit of Sections 10, 11 and 14 thereof
in connection with any exercise of rights under the assigned Sections, and the
Depositor shall use its best efforts to make available to the Trustee the
benefits of Sections 10, 11 and 14 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Master Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied; provided, such Mortgage Loan Seller shall deliver
a copy or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and indemnifying
the Trustee. If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of filing or recording thereon (if intended to be
recorded or filed), solely because of a delay caused by the public filing or
recording office where such document or instrument has been delivered for filing
or recordation, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied on a provisional basis as of the Closing Date as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, if a duplicate original or a
photocopy of such non-delivered document or instrument (certified by the
applicable public filing or recording office, the applicable title insurance
company or the applicable Mortgage Loan Seller to be a true and complete copy of
the original thereof submitted for filing or recording) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office, in the case of
the documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the applicable Mortgage Loan Seller is, as certified in writing to
the Trustee no less often than every 90 days, attempting in good faith to obtain
from the appropriate public filing office or county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon, for
any other reason, including, without limitation, that such non-delivered
document or instrument has been lost or destroyed, the delivery requirements of
the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, if a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing or recording, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v) (to the
extent not already assigned pursuant to clause (iii)), (vii) (to the extent not
already assigned pursuant to clause (iii)) or (xi) of the definition of
"Mortgage File" solely because of the unavailability of filing or recording
information as to any existing document or instrument and/or because such
assignments are assignments in blank and have not been completed in favor of the
Trustee as specified in the related clause(s) of the definition of "Mortgage
File," such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H;
provided that all required original assignments with respect to such Mortgage
Loan, in fully complete and recordable form (or form suitable for filing or
recording, if applicable), are delivered to the Trustee or its Custodian within
180 days after the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its discretion may consent to, which consent shall not
be unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the Master Servicer and the Master Servicer shall hold the
original (or copy, if such original has been submitted by the applicable
Mortgage Loan Seller to the issuing bank to effect an assignment or amendment of
such letter of credit (changing the beneficiary thereof to the Trust (in care of
the Master Servicer) that may be required in order for the Master Servicer to
draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents) and the
applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to any letter(s) of credit a copy thereof to
the Trustee together with an officer's certificate of the applicable Mortgage
Loan Seller certifying that such document has been delivered to the Master
Servicer or an officer's certificate from the Master Servicer certifying that it
holds the letter(s) of credit pursuant to this Section 2.01(b), one of which
shall be delivered to the Trustee on the Closing Date. If a letter of credit
referred to in the previous sentence is not in a form that would allow the
Master Servicer to draw on such letter of credit on behalf of the Trust in
accordance with the applicable terms thereof and/or of the related Mortgage Loan
documents, the applicable Mortgage Loan Seller shall deliver the appropriate
assignment or amendment documents (or copies of such assignment or amendment
documents if the related Mortgage Loan Seller has submitted the originals to the
related issuer of such letter of credit for processing) to the Master Servicer
within 30 days of the Closing Date. If not otherwise paid by the related
Mortgagor, the applicable Mortgage Loan Seller shall pay any costs of assignment
or amendment of such letter(s) of credit required in order for the Master
Servicer to draw on such letter(s) of credit on behalf of the Trust and shall
cooperate with the reasonable requests of the Master Servicer or the Special
Servicer, as applicable, in connection with effectuating a draw under any such
letter of credit prior to the date such letter of credit is assigned or amended
in order that it may be drawn by the Master Servicer on behalf of the Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each Assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
("Assignments" and, individually, "Assignment") relating to the Mortgage Loans
conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper
form for filing or recording, as applicable, and to submit such Assignments for
filing or recording, as the case may be, in the applicable public filing or
recording office, and on the Closing Date, such Mortgage Loan Seller may deliver
one (1) omnibus assignment for all such Mortgage Loans to the Trustee or its
Custodian as provided in Section 2.01(b). Except under the circumstances
provided for in the last sentence of this subsection (c), the related Mortgage
Loan Seller will itself, or a third party at such Mortgage Loan Seller's expense
will, promptly (and in any event within 120 days after the later of the Closing
Date and the Trustee's actual receipt of the related documents and the necessary
recording and filing information) cause to be submitted for recording or filing,
as the case may be, in the appropriate public office for real property records
or UCC Financing Statements, as appropriate, each assignment to the Trustee
referred to in clauses (iii) and (v) of the definition of "Mortgage File" and
each UCC assignment to the Trustee referred to in clause (xi) of the definition
of "Mortgage File." Each such Assignment submitted for recording shall reflect
that it should be returned by the public recording office to the Trustee or its
designee following recording (or to the agent of the Mortgage Loan Seller who
will then be responsible for delivery of the same to the Trustee or its
designee), and each such UCC assignment submitted for recording or filing shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following recording or filing (or to the agent of the Mortgage Loan
Seller who will then be responsible for delivery of the same to the Trustee or
its designee). If any such document or instrument is determined to be incomplete
or not to meet the recording or filing requirements of the jurisdiction in which
it is to be recorded or filed, or is lost by the public office or returned
unrecorded or unfiled, as the case may be, because of a defect therein, on or
about 180 days after the Closing Date, the related Mortgage Loan Seller or its
designee shall prepare, at its own expense, a substitute therefor or cure such
defect, as the case may be, and thereafter the Mortgage Loan Seller or its
designee shall, at the expense of the related Mortgage Loan Seller, upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. If, by the
first anniversary of the Closing Date, the Trustee has not received confirmation
of the recording or filing as the case may be, of any such Assignment, it shall
so advise the related Mortgage Loan Seller who may then pursue such confirmation
itself or request that the Trustee pursue such confirmation at the related
Mortgage Loan Seller's expense, and upon such a request and provision for
payment of such expenses satisfactory to the Trustee, the Trustee, at the
expense of the applicable Mortgage Loan Seller, shall cause a search of the land
records of each applicable jurisdiction and of the records of the offices of the
applicable Secretary of State for confirmation that the Assignment appears in
such records and retain a copy of such confirmation in the related Mortgage
File. In the event that confirmation of the recording or filing of an Assignment
cannot be obtained, the Trustee or the related Mortgage Loan Seller, as
applicable, shall promptly inform the other and the Trustee shall provide such
Mortgage Loan Seller with a copy of the Assignment and request the preparation
of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for
the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File," or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File," in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications (including such communications
between the Mortgage Loan Seller and its Affiliates) and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications that are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the Master Servicer within 5 Business Days after the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders (and as holder of the Class A-MFL Regular
Interest and the Uncertificated Lower-Tier Interests) and, if applicable, on
behalf of the related Companion Holder. Such documents and records shall be any
documents and records (with the exception of any items excluded under the
immediately preceding sentence) that would otherwise be a part of the Servicing
File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, as in full force and effect, without
amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name to be transferred
to the Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
(g) The Trustee hereby acknowledges the receipt by it of the Closing
Date Deposit Amount. The Trustee shall hold such Closing Date Deposit Amount in
the Distribution Account and shall include the Closing Date Deposit Amount in
the Available Distribution Amount for the initial Distribution Date.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clauses (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by Section 2.01(b) hereof) and (xxiii) of
the definition of "Mortgage File" with respect to each Mortgage Loan, of a fully
executed original counterpart of each of the Mortgage Loan Purchase Agreements,
and of all other assets included in the Trust Fund and (2) declares (a) that it
or a Custodian on its behalf holds and will hold such documents and the other
documents delivered or caused to be delivered by the Mortgage Loan Sellers that
constitute the Mortgage Files, and (b) that it holds and will hold such other
assets included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders and, with respect to any original
document in the Mortgage File for each Serviced Whole Loan, for any present or
future Companion Holder (and for the benefit of the Trustee as holder of the
Class A-MFL Regular Interest and the Uncertificated Lower-Tier Interests), as
applicable. If any Mortgage Loan Seller is unable to deliver or cause the
delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a
copy of such Mortgage Note, together with a signed lost note affidavit and
appropriate indemnity and shall thereby be deemed to have satisfied the document
delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit T, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicer, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full) and except as specifically identified in any
exception report annexed to such writing (the "Trustee Exception Report"), (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to last sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
With respect to each Mortgage Loan listed on the Trustee Exception Report, the
Trustee shall specifically identify such Mortgage Loan together with the nature
of such exception (in the form reasonably acceptable to the Trustee and the
related Mortgage Loan Seller and separating items required to be in the Mortgage
File but never delivered from items which were delivered by the related Mortgage
Loan Seller but are out for filing or recording and have not been returned by
the filing office or the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit V, certify in writing to each of the Depositor, the
Master Servicer, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the third to last sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File," resulting solely from a delay in the return
of the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
thirty (30) days following a Servicing Transfer Event, and (ii) impairs or
prohibits in any material way the Master Servicer's or Special Servicer's
ability to act upon, or enforce, any of the Trust Fund's rights and remedies
under the related Mortgage Loan, or Specially Serviced Mortgage Loan, as
applicable, at the time the Master Servicer or Special Servicer attempts to act
upon, or enforce, any such right or remedy, the Directing Certificateholder, in
its sole judgment, may permit the related Mortgage Loan Seller, in lieu of
repurchasing or substituting for the related Mortgage Loan, to deposit with the
Trustee an amount, to be held in trust in a segregated Eligible Account, equal
to 25% of the Stated Principal Balance of the related Mortgage Loan (in the
alternative, the related Mortgage Loan Seller may deliver to the Trustee a
letter of credit in such amount). Such funds or letter of credit, as applicable,
shall be held by the Trustee (i) until the date on which the Master Servicer
certifies to the Trustee that such document deficiency has been cured or the
related Mortgage Loan is no longer part of the Trust Fund, at which time the
Trustee shall return such funds (or letter of credit) to the related Mortgage
Loan Seller, or (ii) until same are applied to the Purchase Price (or the
Substitution Shortfall Amount, if applicable) as set forth below in this Section
2.02(d) in the event of a repurchase or substitution by the related Mortgage
Loan Seller. If the related Mortgage Loan is or becomes a Specially Serviced
Mortgage Loan and the Special Servicer certifies to the Trustee that it has
determined in the exercise of its reasonable judgment that the document with
respect to which such document deficiency exists is required in connection with
an imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any Mortgagor or third party with
respect to the related Mortgage Loan, establishing the validity or priority of
any lien on collateral securing the Mortgage Loan or for any immediate
significant servicing obligation, the related Mortgage Loan Seller shall be
required to repurchase or substitute for the related Mortgage Loan in accordance
with the terms and conditions of Section 2.03(b) or Section 6 of the related
Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan
Seller shall not be required to repurchase the Mortgage Loan for a period of
ninety (90) days after receipt of a notice to repurchase (together with any
applicable extension period) if it is attempting to recover the document from
the applicable filing or recording office and provides an officer's certificate
setting forth what actions such Mortgage Loan Seller is pursuing in connection
with such recovery. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, or cause the Master Servicer to deposit, such
funds, or shall draw upon the letter of credit and deposit the proceeds of such
draw, into the Certificate Account to be applied to the Purchase Price (or the
Substitution Shortfall Amount, if applicable, in which event, the amount of such
funds or proceeds that exceed the Substitution Shortfall Amount shall be
returned to the Mortgage Loan Seller) in accordance with Section 2.03(b). All
such funds deposited with the Trustee shall be invested in Permitted
Investments, at the direction and for the benefit of the related Mortgage Loan
Seller. Such funds shall be treated as an "outside reserve fund" under the REMIC
Provisions, which, together with any reimbursement from the Lower-Tier REMIC, is
beneficially owned by the related Mortgage Loan Seller for federal income tax
purposes, which Mortgage Loan Seller shall remain liable for any taxes payable
on income or gain with respect thereto.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (x) and (xii) through (xxii)
of the definition of "Mortgage File" exist or are required to be delivered by
the Depositor, the Mortgage Loan Sellers or any other Person (unless identified
on the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation, whether all endorsements or riders issued are included in the file
or if the policy has not been issued whether any acceptable replacement document
has been dated the date of the related Mortgage Loan funding. Further, with
respect to the UCC financing statements referenced in the Mortgage File, absent
actual knowledge to the contrary or copies of UCC financing statements delivered
to the Trustee as part of the Mortgage File indicating otherwise, the Trustee
may assume, for the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor, except to the extent multiple Mortgagors are named as
debtors in the same UCC financing statement filing), or if the Trustee has
received notice that a particular UCC financing statement was filed as a fixture
filing, that the related Mortgage File should include only a local UCC financing
statement filing for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more Mortgagors, for each Mortgagor, except to the extent
multiple Mortgagors are named as debtors in the same UCC financing statement
filing). The assignments of the UCC financing statements to be assigned to the
Trust will be delivered on the new national forms (or on such other form as may
be acceptable for filing or recording in the applicable jurisdiction) and in a
format suitable for filing or recording, as applicable, and will be filed or
recorded in the jurisdiction(s) where such UCC financing statements were
originally filed or recorded, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed,
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the Master Servicer, the Special
Servicer, the Directing Certificateholder and the applicable Mortgage Loan
Seller (and in no event later than 90 days after the Closing Date and every
calendar quarter thereafter, commencing with the quarter ending December 31,
2007 until December 31, 2009, by providing a written report (the "Trustee
Exception Report") setting forth for each affected Mortgage Loan, with
particularity, the nature of such Defect (in a form reasonably acceptable to the
Trustee and such Mortgage Loan Seller and separating items required to be in the
Mortgage File but never delivered from items which were delivered by such
Mortgage Loan Seller but are out for recording or filing and have not been
returned by the recorder's office or filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, and the Depositor has taken all necessary corporate action
to authorize the execution, delivery and performance of this
Agreement by it, and has the power and authority to execute, deliver
and perform this Agreement and all the transactions contemplated
hereby, including, but not limited to, the power and authority to
sell, assign and transfer the Mortgage Loans in accordance with this
Agreement;
(ii) Assuming the due authorization, execution and delivery of
this Agreement by each other party hereto, this Agreement and all of
the obligations of the Depositor hereunder are the legal, valid and
binding obligations of the Depositor, enforceable against the
Depositor in accordance with the terms of this Agreement, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or
provisions of the certificate of incorporation or the by-laws of the
Depositor or any indenture, agreement or instrument to which the
Depositor is a party or by which it is bound, or any order or decree
applicable to the Depositor, or result in the creation or imposition
of any lien on any of the Depositor's assets or property, which
would materially and adversely affect the ability of the Depositor
to carry out the transactions contemplated by this Agreement; the
Depositor has obtained any consent, approval, authorization or order
of any court or governmental agency or body required for the
execution, delivery and performance by the Depositor of this
Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court
or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of the
Mortgage Loans or the ability of the Depositor to carry out the
transactions contemplated by this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans
with the full right to transfer the Mortgage Loans to the Trust and
the Mortgage Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee or the Directing Certificateholder
discovers (without implying any duty of such person to make, or to attempt to
make, such a discovery) or receives notice of a Defect in any Mortgage File or a
breach of any representation or warranty with respect to a Mortgage Loan set
forth in, or required to be made with respect to, a Mortgage Loan by the
applicable Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of such Mortgage Loan, the value of the related
Mortgaged Property or the interests of the Trustee or any Certificateholder
therein, such Certificateholder, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or the Directing Certificateholder, as applicable,
shall give prompt written notice of such Defect or Breach, as the case may be,
to the Depositor, the Master Servicer, the Special Servicer, the applicable
Mortgage Loan Seller, the Trustee, the Paying Agent and the Directing
Certificateholder and shall request in writing that the applicable Mortgage Loan
Seller, not later than 90 days after the earlier of (i) the applicable Mortgage
Loan Seller's receipt of such notice or (ii) in the case of a Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) that causes a defective mortgage loan to be
treated as a qualified mortgage, the applicable Mortgage Loan Seller's discovery
of such Defect or Breach (the "Initial Cure Period") that materially and
adversely affects the value of any Mortgage Loan, the value of the related
Mortgaged Property or the interests of the Trustee or any Certificateholder
therein, (i) cure such Defect or Breach, as the case may be, in all material
respects, (ii) repurchase the affected Mortgage Loan or REO Loan at the
applicable Purchase Price and in conformity with the applicable Mortgage Loan
Purchase Agreement and this Agreement or (iii) substitute a Qualified Substitute
Mortgage Loan (other than with respect to a Serviced Mortgage Loan, for which no
substitution will be permitted) for such affected Mortgage Loan or REO Loan
(provided that in no event shall any such substitution occur on or after the
second anniversary of the Closing Date) and pay the Master Servicer for deposit
into the Certificate Account, any Substitution Shortfall Amount in connection
therewith and in conformity with the applicable Mortgage Loan Purchase Agreement
and this Agreement; provided, however, that if such Breach or Defect is capable
of being cured but is not cured within the Initial Cure Period, and the
applicable Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Breach or Defect within the Initial Cure Period, the applicable
Mortgage Loan Seller shall have an additional 90 days commencing immediately
upon the expiration of the Initial Cure Period (such additional 90 day period,
the "Extended Cure Period") to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan or REO Loan or substitute a Qualified
Substitute Mortgage Loan) (other than with respect to a Serviced Mortgage Loan,
for which no substitution will be permitted) and provided, further, that with
respect to such Extended Cure Period the applicable Mortgage Loan Seller shall
have delivered an officer's certificate to the Trustee (who shall promptly
deliver a copy of such officer's certificate to the Rating Agencies, the Master
Servicer, the Special Servicer and the Directing Certificateholder), setting
forth the reason such Breach or Defect is not capable of being cured within the
Initial Cure Period and what actions the applicable Mortgage Loan Seller is
pursuing in connection with the cure thereof and stating that the applicable
Mortgage Loan Seller anticipates that such Breach or Defect will be cured within
the Extended Cure Period. Notwithstanding the foregoing, any Defect or Breach
which causes any Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code, but without regard to the rule of
Treasury Regulations Section 1.860G-2(f)(2) that causes a defective mortgage
loan to be treated as a qualified mortgage) shall be deemed to materially and
adversely affect the interests of Certificateholders therein, and such Mortgage
Loan shall be repurchased or substituted for without regard to the Extended Cure
Period described in the preceding sentence. If the affected Mortgage Loan is to
be repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer to the
Certificate Account. If any Breach pertains to a representation or warranty that
the related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then the
related Mortgage Loan Seller shall cure such Breach within the applicable cure
period (as the same may be extended) by reimbursing the Trust Fund (by wire
transfer of immediately available funds) the reasonable amount of any such costs
and expenses incurred by the Master Servicer, the Special Servicer, the Paying
Agent, the Trustee or the Trust Fund that are the basis of such Breach and have
not been reimbursed by the related Mortgagor; provided, however, that in the
event any such costs and expenses exceed $10,000, the related Mortgage Loan
Seller shall have the option to either repurchase or substitute for the related
Mortgage Loan as provided above or pay such costs and expenses. Except as
provided in the proviso to the immediately preceding sentence, the related
Mortgage Loan Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the related Mortgage Loan Seller shall be deemed to
have cured such Breach in all respects. To the extent any fees or expenses that
are the subject of a cure by the related Mortgage Loan Seller are subsequently
obtained from the related Mortgagor, the portion of the cure payment made by the
related Mortgage Loan Seller equal to such fees or expenses obtained from the
Mortgagor shall be returned to the related Mortgage Loan Seller pursuant to
Section 2.03(f) below. Monthly Payments due with respect to each Qualified
Substitute Mortgage Loan (if any) after the related Due Date in the month of
substitution, and Monthly Payments due with respect to each Mortgage Loan being
repurchased or replaced after the related Cut-off Date and received by the
Master Servicer or the Special Servicer on behalf of the Trust on or prior to
the related date of repurchase or substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) on or prior to the related Due Date in the month of substitution, and
Monthly Payments due with respect to each Mortgage Loan being repurchased or
replaced and received by the Master Servicer or the Special Servicer on behalf
of the Trust after the related date of repurchase or substitution, shall not be
part of the Trust Fund and are to be remitted by the Master Servicer to the
Mortgage Loan Seller effecting the related repurchase or substitution promptly
following receipt. Notwithstanding anything contained in this Agreement or the
related Mortgage Loan Purchase Agreement, no delay in either the discovery of a
Defect or Breach or delay on the part of any party to this Agreement in
providing notice of such Defect or Breach shall relieve the Mortgage Loan Seller
of its obligation to repurchase if it is otherwise required to do so under the
related Mortgage Loan Purchase Agreement and/or this Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of Mortgage File; (d) the absence from the
Mortgage File of any intervening assignments required to create a complete chain
of assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of each such missing intervening assignment
and a certificate stating that the original intervening assignments were sent
for filing or recordation, as applicable; (e) the absence from the Mortgage File
of any required letter of credit; or (f) with respect to any leasehold mortgage
loan, the absence from the related Mortgage File of a copy (or an original, if
available) of the related Ground Lease; provided, however, that no Defect
(except the Defects previously described in clauses (a) through (f)) shall be
considered to materially and adversely affect the value of the related Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or Certificateholders unless the document with respect to which the
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or a binding commitment to issue a lender's title insurance policy,
as provided in clause (ix) of the definition of Mortgage File herein, in lieu of
the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Master Servicer and the Special Servicer shall
each tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a trust receipt
executed by the applicable Mortgage Loan Seller evidencing such repurchase or
substitution, all portions of the Mortgage File and other documents pertaining
to such Mortgage Loan possessed by each of the Trustee, the Master Servicer and
the Special Servicer, and each document that constitutes a part of the Mortgage
File that was endorsed or assigned to the Trustee shall be endorsed or assigned,
as the case may be, to the applicable Mortgage Loan Seller in the same manner as
provided in Section 6 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of any
of the Mortgage Loan Purchase Agreements.
(e) The Master Servicer or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-MFL Regular
Interest and the Uncertificated Lower-Tier Interests), enforce the obligations
of the applicable Mortgage Loan Seller under the applicable Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, if any, shall be carried out in such form, to such extent
and at such time as the Master Servicer or the Special Servicer would require
were it, in its individual capacity, the owner of the affected Mortgage Loan(s).
Any costs incurred by the Master Servicer or the Special Servicer with respect
to the enforcement of the obligations of the applicable Mortgage Loan Seller
under the applicable Mortgage Loan Purchase Agreement shall be deemed to be
Servicing Advances to the extent not otherwise provided herein. The Master
Servicer or the Special Servicer, as applicable, shall be reimbursed for the
reasonable costs of such enforcement: first, from a specific recovery, if any,
of costs, expenses or attorneys' fees against the applicable Mortgage Loan
Seller; second, pursuant to Section 3.05(a)(vii) herein out of the related
Purchase Price, to the extent that such expenses are a specific component
thereof; and third, if at the conclusion of such enforcement action it is
determined that the amounts described in clauses first and second are
insufficient, then pursuant to Section 3.05(a)(viii) herein out of general
collections on the Mortgage Loans on deposit in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Paying Agent, the Trust Fund, the Master Servicer and
the Special Servicer to recover amounts owed by the related Mortgagor under the
terms of such Mortgage Loan, including, without limitation, the rights to
recover unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the
Paying Agent, the Trust Fund, the Master Servicer or the Special Servicer
allocable to such Mortgage Loan. The Master Servicer or, with respect to a
Specially Serviced Mortgage Loan, the Special Servicer, shall use reasonable
efforts to recover such expenses for such Mortgage Loan Seller to the extent
consistent with the Servicing Standards, but taking into account the subordinate
nature of the reimbursement to the Mortgage Loan Seller; provided, however, that
the Master Servicer or, with respect to a Specially Serviced Mortgage Loan, the
Special Servicer, determines in the exercise of its sole discretion consistent
with the Servicing Standards that such actions by it will not impair the Master
Servicer's and/or the Special Servicer's collection or recovery of principal,
interest and other sums due with respect to the related Mortgage Loan which
would otherwise be payable to the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificateholders pursuant to the terms of
this Agreement; provided, further, that the Master Servicer or, with respect to
a Specially Serviced Mortgage Loan, the Special Servicer, may waive the
collection of amounts due on behalf of the Mortgage Loan Seller in its sole
discretion in accordance with the Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller will be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution
and repurchase of Mortgage Loans set forth herein. In the event that the
remaining Crossed Loans in such Crossed Group satisfy the aforementioned
criteria, the applicable Mortgage Loan Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Breach or
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. Any reserve or other cash collateral or letters of credit
securing the Crossed Loans shall be allocated between such Mortgage Loans in
accordance with the related Mortgage Loan documents or otherwise on a pro rata
basis based upon their outstanding Stated Principal Balances. Except as provided
in Section 2.03(h), all other terms of the Mortgage Loans shall remain in full
force and effect without any modification thereof.
(h) Notwithstanding the foregoing, if the related Mortgage provides
for the partial release of one or more of the Crossed Loans, the Depositor may
cause the related Mortgage Loan Seller to repurchase only that Mortgage Loan
required to be repurchased pursuant to this Section 2.03, pursuant to the
partial release provisions of the related Mortgage; provided, however, that (i)
the remaining Mortgage Loan(s) fully comply with the terms and conditions of the
related Mortgage, this Agreement and the related Mortgage Loan Purchase
Agreement, including the Crossed Loan Repurchase Criteria, (ii) in connection
with such partial release, the related Mortgage Loan Seller obtains an Opinion
of Counsel (at such Mortgage Loan Seller's expense) to the effect that the
contemplated action will not, with respect to the Upper-Tier REMIC or the
Lower-Tier REMIC created hereunder, endanger such status or result in the
imposition of any tax and (iii) in connection with such partial release, the
related Mortgage Loan Seller delivers or causes to be delivered to the Custodian
original modifications to the Mortgage prepared and executed in connection with
such partial release.
(i) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans, receipt of which is hereby acknowledged, the Trustee (i)
acknowledges the issuance of the Uncertificated Lower-Tier Interests by the
Paying Agent to the Depositor, (ii) acknowledges the authentication and delivery
of the Class LR Certificates by the Paying Agent to or upon the order of the
Depositor, (iii) acknowledges the contribution by the Depositor of the
Uncertificated Lower-Tier Interests to the Upper-Tier REMIC and (iv) immediately
thereafter, the Trustee acknowledges that it has caused the Certificate
Registrar to execute and caused the Authenticating Agent to authenticate and to
deliver to or upon the order of the Depositor, in exchange for the
Uncertificated Lower-Tier Interests, the Regular Certificates (other than the
Class A-MFL Certificates) and the Class R Certificates and the Class A-MFL
Regular Interest, and the Depositor hereby acknowledges the receipt by it or its
designees, of such Certificates and the Class A-MFL Regular Interest in
authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Class A-MFL
Regular Interest to the Trustee for the benefit of the Holders of the Class
A-MFL Certificates. The Trustee (i) acknowledges the assignment to it of the
Class A-MFL Regular Interest and acknowledges that it has executed the Swap
Contract, (ii) declares that it holds and will hold the same in trust for the
exclusive use and benefit of all present and future Holders of the Class A-MFL
Certificates and (iii) declares that it has caused the Certificate Registrar to
execute, and has caused the Authenticating Agent to authenticate and to deliver
to or upon the order of the Depositor, in exchange for the Class A-MFL Regular
Interest and for entering into the Swap Contract, and the Depositor hereby
acknowledges the receipt by it or its designees of the Class A-MFL Certificates
in authorized Denominations.
Section 2.05 Grantor Trust Designations. The Class A-MFL
Certificates are hereby designated as undivided beneficial interests in the
portion of the Trust Fund consisting of the Class A-MFL Regular Interest, the
Swap Contract and Floating Rate Account and the proceeds thereof, which portion
shall be treated as a grantor trust within the meaning of subpart E, Part I of
subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
Each of the Master Servicer and the Special Servicer shall diligently service
and administer the Mortgage Loans and the Companion Loans it is obligated to
service pursuant to this Agreement on behalf of the Trust and in the best
interests of and for the benefit of the Certificateholders and, in the case of
the Companion Loans, the related Companion Holders and the Trustee (as holder of
Class A-MFL Regular Interest and the Uncertificated Lower-Tier Interests), as a
collective whole, taking into account the subordinate or pari passu nature of
the Companion Loans, as the case may be (as determined by the Master Servicer or
the Special Servicer, as the case may be, in its reasonable judgment), in
accordance with applicable law, the terms of this Agreement and, with respect to
each Serviced Whole Loan, the related Intercreditor Agreement and the terms of
the respective Mortgage Loans and, if applicable, the related Companion Loan,
taking into account the subordinate or pari passu nature of the Companion Loan,
as the case may be. With respect to each Serviced Whole Loan, in the event of a
conflict between this Agreement and the related Intercreditor Agreement, the
related Intercreditor Agreement shall control; provided, in no event shall the
Master Servicer or the Special Servicer take any action or omit to take any
action in accordance with the terms of any Intercreditor Agreement that would
cause the Master Servicer or the Special Servicer, as the case may be, to
violate the Servicing Standards. To the extent consistent with the foregoing,
the Master Servicer and the Special Servicer shall service the Mortgage Loans
and Companion Loans in accordance with the higher of the following standards of
care: (1) in the same manner in which, and with the same care, skill, prudence
and diligence with which the Master Servicer or the Special Servicer, as the
case may be, services and administers similar mortgage loans for other third
party portfolios and (2) the same care, skill, prudence and diligence with which
the Master Servicer or the Special Servicer, as the case may be, services and
administers similar mortgage loans owned by the Master Servicer or the Special
Servicer, as the case may be, with a view to the maximization of timely recovery
of principal and interest on a net present value basis on the Mortgage Loans or
the Specially Serviced Mortgage Loans and any related Companion Loan, as
applicable, and the best interests of the Trust and the Certificateholders (and,
in the case of a Serviced Mortgage Loan, the related Serviced Companion
Noteholders, taking into account the subordinate or pari passu nature of the
related Serviced Companion Loan), as determined by the Master Servicer or the
Special Servicer, as the case may be, in its reasonable judgment, in either case
giving due consideration to the customary and usual standards of practice of
prudent institutional, multifamily and commercial mortgage loan servicers, but
without regard to: (i) any relationship that the Master Servicer, the Special
Servicer or any Affiliate of the Master Servicer or the Special Servicer may
have with any Mortgagor or any Affiliate of such Mortgagor, any Mortgage Loan
Seller or any other parties to this Agreement; (ii) the ownership of any
Certificate, Companion Loan or mezzanine loan by the Master Servicer, the
Special Servicer or any Affiliate of the Master Servicer or Special Servicer, as
applicable; (iii) the Master Servicer's obligation to make Advances; (iv) the
adequacy of the Master Servicer's or Special Servicer's, as the case may be,
right to receive compensation for its services and reimbursement for its costs
hereunder or with respect to any particular transaction; (v) the ownership,
servicing or management for others of any other mortgage loans or mortgaged
properties by the Master Servicer or Special Servicer; (vi) any option to
purchase any Mortgage Loan or Companion Loan it may have; and (vii) any other
debt the Master Servicer or the Special Servicer or any of its Affiliates has
extended to any Mortgagor or any of its Affiliates (the foregoing, collectively
referred to as the "Servicing Standards").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans
(other than the Non-Serviced Mortgage Loans) and Companion Loans as to which a
Servicing Transfer Event has occurred and is continuing (the "Specially Serviced
Mortgage Loans") and (ii) any REO Properties (other than the Non-Serviced
Mortgaged Properties); provided that the Master Servicer shall continue to
receive payments and make all calculations, and prepare, or cause to be
prepared, all reports, required hereunder with respect to the Specially Serviced
Mortgage Loans, except for the reports specified herein as prepared by the
Special Servicer, as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such services with respect to such
Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, however, that the Master Servicer shall
not be liable for failure to comply with such duties insofar as such failure
results from a failure of the Special Servicer to provide sufficient information
to the Master Servicer to comply with such duties or failure by the Special
Servicer to otherwise comply with its obligations hereunder. Each Mortgage Loan
or Companion Loan that becomes a Specially Serviced Mortgage Loan shall continue
as such until satisfaction of the conditions specified in Section 3.21(a).
Without limiting the foregoing, subject to Section 3.21, the Master Servicer
shall be obligated to service and administer all Mortgage Loans (other than the
Non-Serviced Mortgage Loans) and Companion Loans, which are not Specially
Serviced Mortgage Loans. The Special Servicer shall make the inspections, use
its reasonable efforts to collect the statements and forward to the Master
Servicer the reports in respect of the related Mortgaged Properties with respect
to Specially Serviced Mortgage Loans in accordance with Section 3.12. After
notification to the Master Servicer, the Special Servicer may contact the
Mortgagor of any Non-Specially Serviced Mortgage Loan if efforts by the Master
Servicer to collect required financial information have been unsuccessful or any
other issues remain unresolved. Such contact shall be coordinated through and
with the cooperation of the Master Servicer. No provision herein contained shall
be construed as an express or implied guarantee by the Master Servicer or the
Special Servicer of the collectability or recoverability of payments on the
Mortgage Loans or shall be construed to impair or adversely affect any rights or
benefits provided by this Agreement to the Master Servicer or the Special
Servicer (including with respect to Servicing Fees, Special Servicing Fees or
the right to be reimbursed for Advances and interest accrued thereon). Any
provision in this Agreement for any Advance by the Master Servicer or the
Trustee is intended solely to provide liquidity for the benefit of the
Certificateholders and not as credit support or otherwise to impose on any such
Person the risk of loss with respect to one or more of the Mortgage Loans. No
provision hereof shall be construed to impose liability on the Master Servicer
or the Special Servicer for the reason that any recovery to the
Certificateholders in respect of a Mortgage Loan at any time after a
determination of present value recovery is less than the amount reflected in
such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements, and applicable law, the
Master Servicer and the Special Servicer each shall have full power and
authority, acting alone or, in the case of the Master Servicer, subject to
Section 3.22, through one or more Sub-Servicers, to do or cause to be done any
and all things in connection with such servicing and administration for which it
is responsible which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name (or in the name of the Trustee and, if applicable, the
Companion Holder), is hereby authorized and empowered by the Trustee to execute
and deliver, on behalf of the Certificateholders and the Trustee or any of them,
with respect to each Mortgage Loan (and, with respect to a Companion Loan, the
Companion Holder) it is obligated to service under this Agreement: (i) any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the related Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) subject to Sections 3.08 and 3.20, any and
all modifications, waivers, amendments or consents to, under or with respect to
any documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, pledge agreements and other
documents in connection with a defeasance, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall furnish, or cause to be furnished, to the Master Servicer or the
Special Servicer any powers of attorney and other documents necessary or
appropriate to enable the Master Servicer or the Special Servicer, as the case
may be, to carry out its servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any negligence
with respect to, or misuse of, any such power of attorney by the Master Servicer
or the Special Servicer. Notwithstanding anything contained herein to the
contrary, the Master Servicer or the Special Servicer, as the case may be, shall
not, without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the Master
Servicer's or the Special Servicer's, as the case may be, representative
capacity or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be required to be registered to do business in any state.
(c) To the extent the Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action which requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Serviced Companion Loan
Securities), the Master Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents or Companion Loan documents require the
Mortgagor to bear the costs of any confirmation of the Rating Agencies that an
action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates (or of any class of Serviced Companion Loan
Securities), the Master Servicer shall not waive the requirement that such costs
and expenses be borne by the related Mortgagor. To the extent that the terms of
the related Mortgage Loan documents or Companion Loan documents are silent as to
who bears the costs of any confirmation of the Rating Agencies that an action
will not result in the downgrade, withdrawal or qualification of the ratings of
any Class of Certificates (or of any class of Serviced Companion Loan
Securities), the Master Servicer shall use reasonable efforts to have the
Mortgagor bear such costs and expenses. The Master Servicer shall not be
responsible for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof by the Master Servicer and (ii) the Closing Date, (x) the
applicable Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement
shall notify each provider of a letter of credit for each Mortgage Loan
identified as having a letter of credit on the Mortgage Loan Schedule, that the
Trust (in care of the Master Servicer) for the benefit of the Certificateholders
and any related Companion Holders shall be the beneficiary under each such
letter of credit and (y) the Master Servicer shall notify each lessor under a
Ground Lease for each Mortgage Loan identified as subject to a leasehold
interest on the Mortgage Loan Schedule, that the Master Servicer or the Special
Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders. If a letter of credit is required to be drawn upon earlier
than the date the applicable Mortgage Loan Seller has notified the provider of
such letter of credit pursuant to clause (i) of the immediately preceding
sentence, such Mortgage Loan Seller shall cooperate with the reasonable requests
of the Master Servicer or Special Servicer in connection with making a draw
under such letter of credit. If the Mortgage Loan documents do not require the
related Mortgagor to pay any costs and expenses relating to any modifications to
or assignment of the related letter of credit, then the applicable Mortgage Loan
Seller shall pay such costs and expenses. If the Mortgage Loan documents require
the related Mortgagor to pay any costs and expenses relating to any
modifications to the related letter of credit, and such Mortgagor fails to pay
such costs and expenses after the Master Servicer has exercised reasonable
efforts to collect such costs and expenses from such Mortgagor, then the Master
Servicer shall give the applicable Mortgage Loan Seller notice of such failure
and the amount of costs and expenses, and such Mortgage Loan Seller shall pay
such costs and expenses. The costs and expenses of any modifications to Ground
Leases shall be paid by the related Mortgagor. Neither the Master Servicer nor
the Special Servicer shall have any liability for the failure of any Mortgage
Loan Seller to perform its obligations under the related Mortgage Loan Purchase
Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer (or the Trustee, as applicable) make an Advance with
respect to any Companion Loan to the extent the related Serviced Mortgage Loan
has been paid in full or is no longer included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder and in accordance with the related Intercreditor Agreement
for so long as the corresponding Serviced Mortgage Loan or any related REO
Property is part of the Trust Fund or for such longer period as any amounts
payable by the related Companion Holder to or for the benefit of the Trust or
any party hereto in accordance with the related Intercreditor Agreement remain
due and owing.
(i) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any Serviced Whole Loan or other
Mortgage Loan that may become subject to an Intercreditor Agreement in the
future, it shall, subject to Section 3.21, use commercially reasonable efforts
to enforce, on behalf of the Trust (taking into consideration the Companion
Loans as a collective whole), subject to the Servicing Standards and to the
extent the Special Servicer determines such action is in the best interests of
the Trust Fund, all rights conveyed to the Trustee pursuant to any such
Intercreditor Agreement. The costs and expenses incurred by the Special Servicer
in connection with such enforcement shall be paid from the Certificate Account
as a trust fund expense.
(j) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the servicing and administration of a Serviced
Whole Loan shall continue hereunder (but not with respect to making P&I
Advances) even if the related Serviced Mortgage Loan is no longer part of the
Trust Fund, until such time as a separate servicing agreement is entered into in
accordance with the related Intercreditor Agreement (it being acknowledged that
neither the Master Servicer nor the Special Servicer shall be obligated under a
separate agreement to which it is not a party); provided that no costs,
expenses, losses or fees accruing with respect to the Serviced Whole Loan on and
after the date the related Serviced Mortgage Loan is no longer part of the Trust
Fund shall be payable out of the Trust Fund.
(k) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's and the Special
Servicer's obligations and responsibilities hereunder and the Master Servicer's
and the Special Servicer's authority with respect to a Non-Serviced Mortgage
Loan are limited by and subject to the terms of the related Non-Serviced
Intercreditor Agreement and the rights of the related Non-Serviced Master
Servicer and Non-Serviced Special Servicer with respect thereto under the
related Non-Serviced Pooling Agreement. The Master Servicer (or, with respect to
any Specially Serviced Mortgage Loan, the Special Servicer) shall use reasonable
efforts consistent with the Servicing Standards to enforce the rights of the
Trustee (as holder of a Non-Serviced Mortgage Loan) under the related
Non-Serviced Intercreditor Agreement and Non-Serviced Pooling Agreement.
(l) The parties hereto acknowledge that each Non-Serviced Mortgage
Loan is subject to the terms and conditions of the related Non-Serviced
Intercreditor Agreement and further acknowledge that, pursuant to the related
Non-Serviced Intercreditor Agreement, (i) the related Non-Serviced Mortgage Loan
is to be serviced and administered by the related Non-Serviced Master Servicer
and Non-Serviced Special Servicer in accordance with the related Non-Serviced
Pooling Agreement, and (ii) in the event that (A) the related Non-Serviced
Companion Loan is no longer part of the trust fund created by the related
Non-Serviced Pooling Agreement and (B) the related Non-Serviced Mortgage Loan is
included in the Trust Fund, then, as set forth in the related Non-Serviced
Intercreditor Agreement, the related Non-Serviced Whole Loan shall continue to
be serviced in accordance with the related Non-Serviced Pooling Agreement, until
such time as a new servicing agreement has been agreed to by the parties to the
related Non-Serviced Intercreditor Agreement in accordance with the provisions
of such agreement and confirmation has been obtained from the Rating Agencies
that such new servicing agreement would not result in a downgrade, qualification
or withdrawal of the then current ratings of any Class of Certificates then
outstanding.
(m) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that the Master Servicer's and the Special
Servicer's obligations and responsibilities hereunder and the Master Servicer's
and the Special Servicer's authority with respect to a Serviced Whole Loan are
limited by and subject to the terms of the related Intercreditor Agreement. The
Master Servicer (or, if a Serviced Whole Loan becomes a Specially Serviced Loan,
the Special Servicer) shall use reasonable efforts consistent with the Servicing
Standards to obtain the benefits of the rights of the Trust Fund (as holder of
the related Serviced Mortgage Loan) under the related Intercreditor Agreement.
In the event of any conflict between this Agreement and the related
Intercreditor Agreement, the provisions of the related Intercreditor Agreement
shall control.
(n) For purposes of calculating the Monthly Payment with respect to
any Serviced Companion Loan, the Master Servicer, with respect to each Due Date,
shall use the Mortgage Rate provided to the Master Servicer by the related
Serviced Whole Loan Controlling Holder pursuant to the related Intercreditor
Agreement.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
Master Servicer and the Special Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the Mortgage
Loans and Companion Loans (subject to the right of certain Companion Holders to
receive payments directly from the related Mortgagor pursuant to the related
Intercreditor Agreement) it is obligated to service hereunder, and shall follow
such collection procedures as are consistent with this Agreement (including,
without limitation, the Servicing Standards), provided that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. The Master Servicer or the Special Servicer, as
applicable, may in its discretion waive any Penalty Charge (other than a Penalty
Charge payable with respect to any Serviced Companion Loan after the
securitization of such Serviced Companion Loan without the consent of the
Serviced Whole Loan Controlling Holder) in connection with any delinquent
payment on a Mortgage Loan or Companion Loan it is obligated to service
hereunder three times during any period of twenty-four consecutive months with
respect to any Mortgage Loan or Companion Loan; provided, that the Master
Servicer or the Special Servicer, as applicable, may in its discretion waive any
Penalty Charge (other than a Penalty Charge payable with respect to any Serviced
Companion Loan after the securitization of such Serviced Companion Loan without
the consent of the Serviced Whole Loan Controlling Holder) in connection with
any delinquent payment on a Mortgage Loan or Companion Loan one additional time
in such 24-month period so long as with respect to any of the foregoing waivers,
no Advance or additional Trust Fund expense has been incurred and remains
unreimbursed to the Trust with respect to such Mortgage Loan or Companion Loan.
Any additional waivers during such 24-month period with respect to such Mortgage
Loan may be made only after the Master Servicer or Special Servicer, as
applicable, has given notice of a proposed waiver to the Directing
Certificateholder and the Directing Certificateholder has consented to such
additional waiver (provided that if the Master Servicer or Special Servicer, as
applicable, fails to receive a response to such notice from the Directing
Certificateholder in writing within five (5) days of giving such notice, then
the Directing Certificateholder shall be deemed to have consented to such
proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to each Serviced Whole
Loan, in accordance with the related Intercreditor Agreement) and, in the
absence of such express provisions, such payments from Mortgagors, Insurance and
Condemnation Proceeds or Liquidation Proceeds shall be applied (after
reimbursement first to the Trustee and second to the Master Servicer for any
related outstanding Advances (including Workout Delayed Reimbursement Amounts
that have not been reimbursed to the Master Servicer) and interest thereon as
provided herein and unpaid servicing compensation, Liquidation Expenses and
related additional Trust Fund expenses): first, as a recovery of accrued and
unpaid interest on such Mortgage Loan or Companion Loan, as applicable, at the
related Mortgage Rate in effect from time to time to but not including the Due
Date in the Due Period of receipt; second, as a recovery of Unliquidated
Advances; third, as a recovery of principal of such Mortgage Loan or Companion
Loan then due and owing, in each case, that were paid from collections on the
Mortgage Loans or Companion Loan and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; fourth, as
a recovery of Nonrecoverable Advances; fifth, in accordance with the Servicing
Standards, as a recovery of any other amounts due and owing on such Mortgage
Loan or Companion Loan, as applicable, including, without limitation, Penalty
Charges and Yield Maintenance Charges; and sixth, as a recovery of principal of
such Mortgage Loan or Companion Loan, as applicable, to the extent of its entire
unpaid principal balance. Notwithstanding the preceding, such provisions shall
not be deemed to affect the priority of distributions of payments. To the extent
that such amounts are paid by a party other than a Mortgagor, such amounts shall
be deemed to have been paid in respect of a purchase of all or part of the
Mortgaged Property (in the case of Insurance and Condemnation Proceeds or
Liquidation Proceeds) and then paid by the Mortgagor under the Mortgage Loan or
Companion Loan, as applicable, in accordance with the preceding sentence.
Amounts collected on any REO Loan shall be deemed to be applied in accordance
with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Serviced Whole Loan, the related Companion Loan and
Intercreditor Agreement) and applicable law, the Master Servicer shall apply all
Insurance and Condemnation Proceeds it receives on a day other than the Due Date
to amounts due and owing under the related Mortgage Loan or Companion Loan as if
such Insurance and Condemnation Proceeds were received on the Due Date
immediately succeeding the month in which such Insurance and Condemnation
Proceeds were received.
(d) [Reserved].
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer shall, to the extent consistent with the
Servicing Standards, hold such escrows, letters of credit and proceeds thereof
as additional collateral and not apply such items to reduce the principal
balance of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents, applicable law or court order.
(f) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit U) to the related
Non-Serviced Master Servicer stating that, as of the Closing Date, the Trustee
is the holder of the related Non-Serviced Mortgage Loan and directing such
Non-Serviced Master Servicer to remit to the Master Servicer all amounts payable
to, and to forward, deliver or otherwise make available, as the case may be, to
the Master Servicer all reports, statements, documents, communications and other
information that are to be forwarded, delivered or otherwise made available to,
the holder of such Non-Serviced Mortgage Loan under the related Non-Serviced
Intercreditor Agreement and Non-Serviced Pooling Agreement. The Master Servicer
shall, within two Business Days of receipt, deposit into the Certificate Account
all amounts received with respect to the related Non-Serviced Mortgage Loan,
Non-Serviced Mortgaged Property or any related REO Property.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) The Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents. Any
Servicing Accounts related to a Serviced Whole Loan shall be held for the
benefit of the Certificateholders and the related Serviced Companion Noteholders
collectively, but this shall not be construed to modify their respective
interests therein as set forth in the related Intercreditor Agreement. Amounts
on deposit in Servicing Accounts may only be invested in accordance with the
terms of the related Mortgage Loan documents or in Permitted Investments in
accordance with the provisions of Section 3.06. Servicing Accounts shall be
Eligible Accounts to the extent permitted by the terms of the related Mortgage
Loan documents. Withdrawals of amounts so deposited from a Servicing Account may
be made only to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Trustee and then the Master
Servicer, if applicable, for any Servicing Advances; (iii) refund to Mortgagors
any sums as may be determined to be overages; (iv) pay interest to Mortgagors on
balances in the Servicing Account, if required by applicable law or the terms of
the related Mortgage Loan or Companion Loan and as described below or, if not so
required, to the Master Servicer; (v) after the occurrence of an event of
default under the related Mortgage Loan or Companion Loan, apply amounts to the
indebtedness under the applicable Mortgage Loan or Companion Loan; (vi) withdraw
amounts deposited in error; (vii) pay Penalty Charges to the extent permitted by
the related Mortgage Loan documents; or (viii) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01. As
part of its servicing duties, the Master Servicer shall pay or cause to be paid
to the Mortgagors interest on funds in Servicing Accounts, to the extent
required by law or the terms of the related Mortgage Loan or Companion Loan;
provided, however, that in no event shall the Master Servicer be required to
remit to any Mortgagor any amounts in excess of actual net investment income or
funds in the related Servicing Account. If allowed by the related Mortgage Loan
documents and applicable law, the Master Servicer may charge the related
Mortgagor an administrative fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans (other than any
REO Loan succeeding a Non-Serviced Mortgage Loan), and the Master Servicer, in
the case of all other Mortgage Loans (other than a Non-Serviced Mortgage Loan)
(and each Companion Loan), shall maintain accurate records with respect to each
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect
thereof. The Special Servicer, in the case of REO Loans (other than any REO Loan
succeeding a Non-Serviced Mortgage Loan), and the Master Servicer, in the case
of all other Mortgage Loans (other than a Non-Serviced Mortgage Loan) and
Companion Loans, shall use reasonable efforts consistent with the Servicing
Standards to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and shall effect payment thereof from the REO
Account or by the Master Servicer as Servicing Advances prior to the applicable
penalty or termination date and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items, employing for such purpose Escrow
Payments (which shall be so applied by the Master Servicer at the written
direction of the Special Servicer in the case of REO Loans) as allowed under the
terms of the related Mortgage Loan (other than a Non-Serviced Mortgage Loan) or
Companion Loan. The Master Servicer shall service and administer any reserve
accounts (including monitoring, maintaining or changing the amounts of required
escrows) in accordance with the terms of such Mortgage Loan and the Servicing
Standards. To the extent that a Mortgage Loan (other than a Non-Serviced
Mortgage Loan) (or a Companion Loan) does not require a Mortgagor to escrow for
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items, the Special Servicer, in the case of REO
Loans, and the Master Servicer, in the case of all other Mortgage Loans and
Companion Loans, shall use reasonable efforts consistent with the Servicing
Standards to cause the Mortgagor to comply with its obligation to make payments
in respect of such items at the time they first become due and, in any event,
prior to the institution of foreclosure or similar proceedings with respect to
the related Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans (other than a Non-Serviced Mortgage Loan) and Serviced Whole Loans, the
Master Servicer shall advance all such funds as are necessary for the purpose of
effecting the payment of (i) real estate taxes, assessments and other similar
items that are or may become a lien thereon, (ii) ground rents (if applicable)
and (iii) premiums on Insurance Policies, in each instance if and to the extent
Escrow Payments collected from the related Mortgagor (or related REO Revenues,
if applicable) are insufficient to pay such item when due and the related
Mortgagor has failed to pay such item on a timely basis, and provided, however,
that the particular advance would not, if made, constitute a Nonrecoverable
Servicing Advance and provided, further, however, that with respect to the
payment of taxes and assessments, the Master Servicer shall not be required to
make such advance until the later of five Business Days after the Master
Servicer, the Special Servicer or the Trustee, as the case may be, has received
confirmation that such item has not been paid or the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments. The Special Servicer shall give the Master Servicer and the Trustee
no less than five Business Days' written (facsimile or electronic) notice before
the date on which the Master Servicer is requested to make any Servicing Advance
with respect to a given Specially Serviced Mortgage Loan or REO Property;
provided, however, that only two Business Days' written (facsimile or
electronic) notice shall be required in respect of Servicing Advances required
to be made on an emergency or urgent basis; provided, further, that the Special
Servicer shall not be entitled to make such a request (other than for Servicing
Advances required to be made on an urgent or emergency basis) more frequently
than once per calendar month (although such request may relate to more than one
Servicing Advance). The Master Servicer may pay the aggregate amount of such
Servicing Advances listed on a monthly request to the Special Servicer, in which
case the Special Servicer shall remit such Servicing Advances to the ultimate
payees. In addition, the Special Servicer shall provide the Master Servicer and
the Trustee with such information in its possession as the Master Servicer or
the Trustee, as applicable, may reasonably request to enable the Master Servicer
or the Trustee, as applicable, to determine whether a requested Servicing
Advance would constitute a Nonrecoverable Advance. Any request by the Special
Servicer that the Master Servicer make a Servicing Advance shall be deemed to be
a determination by the Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Advance, and the Master Servicer shall be entitled to
conclusively rely on such determination; provided, that the determination shall
not be binding on the Master Servicer or Trustee. On the first Business Day
after the Determination Date for the related Distribution Date, the Special
Servicer shall report to the Master Servicer if the Special Servicer determines
any Servicing Advance previously made by the Master Servicer with respect to a
Specially Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing
Advance. The Master Servicer shall be entitled to conclusively rely on such a
determination, and such determination shall be binding upon the Master Servicer,
but shall in no way limit the ability of the Master Servicer in the absence of
such determination to make its own determination that any Servicing Advance is a
Nonrecoverable Advance. Notwithstanding the foregoing, if the Special Servicer
makes a determination that only a portion, and not all, of any previously made
or proposed Servicing Advance is a Nonrecoverable Advance, the Master Servicer
shall have the right to make its own subsequent determination that any remaining
portion of any such previously made or proposed Servicing Advance is a
Nonrecoverable Advance. All such Advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the Master Servicer or the Special Servicer
in effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, the Paying Agent's calculation of monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans or the Companion Loans, notwithstanding that the
terms of such Mortgage Loans or the Companion Loans so permit. If the Master
Servicer fails to make any required Servicing Advance as and when due (including
any applicable cure periods), to the extent the Trustee has actual knowledge of
such failure, the Trustee shall make such Servicing Advance pursuant to Section
7.05. Notwithstanding anything herein to the contrary, no Servicing Advance
shall be required hereunder if such Servicing Advance would, if made, constitute
a Nonrecoverable Servicing Advance. In addition, the Master Servicer shall
consider Unliquidated Advances in respect of prior Servicing Advances for
purposes of nonrecoverability determinations. The Special Servicer shall have no
obligation to make any Servicing Advances under this Agreement.
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the Certificate Account (which shall be deemed first made from amounts
distributable as principal and then from all other amounts comprising general
collections) to pay for certain expenses set forth below notwithstanding that
the Master Servicer (or Special Servicer, as applicable) has determined that a
Servicing Advance with respect to such expenditure would be a Nonrecoverable
Servicing Advance (unless, with respect to Specially Serviced Mortgage Loans or
REO Loans, the Special Servicer has notified the Master Servicer to not make
such expenditure), where making such expenditure would prevent (i) the related
Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any
event that would cause a loss of the priority of the lien of the related
Mortgage, or the loss of any security for the related Mortgage Loan; provided
that in each instance, the Master Servicer or the Special Servicer, as
applicable, determines in accordance with the Servicing Standards (as evidenced
by an Officer's Certificate delivered to the Trustee) that making such
expenditure is in the best interest of the Certificateholders (and, if
applicable the Companion Holders), all as a collective whole. The Master
Servicer or Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of 3.19(c). The
parties acknowledge that pursuant to the applicable Non-Serviced Pooling
Agreement, the applicable Non-Serviced Master Servicer is obligated to make
servicing advances with respect to the related Non-Serviced Whole Loan. The
applicable Non-Serviced Master Servicer shall be entitled to reimbursement for
Nonrecoverable Servicing Advances with respect to such Non-Serviced Whole Loan
(with, in each case, any accrued and unpaid interest thereon provided for under
the applicable Non-Serviced Pooling Agreement) in the manner set forth in the
applicable Non-Serviced Pooling Agreement and the applicable Non-Serviced
Intercreditor Agreement.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and then the
Master Servicer, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in the Certificate Account interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of such Servicing
Advance from the date made to, but not including, the date of reimbursement.
Subject to Section 3.19(c), the Master Servicer shall reimburse itself or the
Trustee, as the case may be, for any outstanding Servicing Advance as soon as
practically possible after funds available for such purpose are deposited in the
Certificate Account subject to the Master Servicer's or the Trustee's options
and rights to defer recovery of such amounts as provided herein.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan (other than
a Non-Serviced Mortgage Loan), the Master Servicer shall request from the
Mortgagor written confirmation thereof within a reasonable time after the later
of the Closing Date and the date as of which such plan is required to be
established or completed. To the extent any repairs, capital improvements,
actions or remediations are required to have been taken or completed pursuant to
the terms of the Mortgage Loan (other than a Non-Serviced Mortgage Loan), the
Master Servicer shall request from the Mortgagor written confirmation of such
actions and remediations within a reasonable time after the later of the Closing
Date and the date as of which such action or remediations are required to be or
to have been taken or completed. To the extent a Mortgagor shall fail to
promptly respond to any inquiry described in this Section 3.03(e), the Master
Servicer shall, in accordance with the Servicing Standards, determine whether
the related Mortgagor has failed to perform its obligations under the related
Mortgage Loan and report any such failure to the Special Servicer within a
reasonable time after the making of the request for written confirmation.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account, the Gain-on-Sale Reserve Account and the Floating Rate Account. (a) The
Master Servicer shall establish and maintain, or cause to be established and
maintained, a Certificate Account in which the Master Servicer shall deposit or
cause to be deposited on a daily basis and in no event later than the Business
Day following receipt of available funds (in the case of payments by Mortgagors
or other collections on the Mortgage Loans or Companion Loans), except as
otherwise specifically provided herein, the following payments and collections
received or made by or on behalf of it subsequent to the Cut-off Date (other
than in respect of principal and interest on the Mortgage Loans or Companion
Loans due and payable on or before the Cut-off Date, which payments shall be
delivered promptly to the appropriate Mortgage Loan Seller or its designee and
other than any amounts received from Mortgagors which are received in connection
with the purchase of defeasance collateral), or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to a
period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans
or Companion Loans, including Yield Maintenance Charges and Default
Interest;
(iii) late payment charges and other Penalty Charges to the
extent required to offset interest on Advances and additional Trust
Fund expenses (other than Special Servicing Fees, Workout Fees or
Liquidation Fees) as required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of
any Mortgage Loan, Companion Loan or REO Property (other than (i)
Liquidation Proceeds that are received in connection with the
purchase by the Master Servicer, the Special Servicer, the Holders
of the Controlling Class, or the Holders of the Class LR
Certificates of all the Mortgage Loans and any REO Properties in the
Trust Fund and that are to be deposited in the Lower-Tier
Distribution Account pursuant to Section 9.01 and (ii) any proceeds
that are received in connection with the purchase of a Companion
Loan from a securitization by the related mortgage loan seller,
which shall be paid directly to the servicer of such securitization)
together with any recovery of Unliquidated Advances in respect of
the related Mortgage Loans;
(v) any amounts required to be transferred from the REO
Account pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the
Certificate Account; and
(vii) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a
blanket hazard or master single interest policy.
Notwithstanding the foregoing requirements, the Master Servicer need
not deposit into the Certificate Account any amount that the Master Servicer
would be authorized to withdraw immediately from such account in accordance with
the terms of Section 3.05 and shall be entitled to instead immediately pay such
amount directly to the Person(s) entitled thereto; provided that such amounts
shall be applied in accordance with the terms hereof and shall be reported as if
deposited in such Certificate Account and then withdrawn.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
Master Servicer in the Certificate Account. If the Master Servicer shall deposit
in the Certificate Account any amount not required to be deposited therein, it
may at any time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. Assumption, extension and modification
fees actually received from Mortgagors on Specially Serviced Mortgage Loans
shall be promptly delivered to the Special Servicer as additional servicing
compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Master
Servicer for deposit into the Certificate Account, in accordance with this
Section 3.04(a). Any such amounts received by the Special Servicer with respect
to an REO Property shall be deposited by the Special Servicer into the REO
Account and remitted to the Master Servicer for deposit into the Certificate
Account, pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
without recourse or warranty such check to the order of the Master Servicer and
shall promptly deliver any such check to the Master Servicer by overnight
courier.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account for the Master Servicer shall be located at the
offices of 00000 Xxxxxx Xxxxxx, Xxxxxxxx 00, Xxxxx 000, Xxxxxxxx, Xxxxxx 00000.
The Master Servicer shall give notice to the Trustee, the Special Servicer, the
Paying Agent and the Depositor of the new location of the Certificate Account
prior to any change thereof.
(b) The Paying Agent, on behalf of the Trustee, shall establish and
maintain the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Interest Reserve Account, the Floating Rate Account and the
Gain-on-Sale Reserve Account in trust for the benefit of the Certificateholders
(and the Trustee as holder of the Class A-MFL Regular Interest and the
Uncertificated Lower-Tier Interests). The Master Servicer shall deliver to the
Paying Agent each month on or before the P&I Advance Date therein, for deposit
in the Lower-Tier Distribution Account, that portion of the Available
Distribution Amount attributable to the Mortgage Loans (in each case, calculated
without regard to clauses (a)(iv), (a)(viii), (c) and (d) of the definition of
Available Distribution Amount) for the related Distribution Date.
With respect to the Companion Loans (excluding any Non-Serviced
Companion Loan), the Companion Paying Agent shall establish and maintain an
account, which may be a subaccount of the Certificate Account, for distributions
to each Companion Holder (the "Companion Distribution Account") to be held for
the benefit of the related Companion Holder and shall, promptly upon receipt,
deposit in the Companion Distribution Account any and all amounts received by
the Companion Paying Agent that are required by the terms of this Agreement or
the applicable Intercreditor Agreement to be deposited therein. The Master
Servicer shall deliver to the Companion Paying Agent each month, on or before
the P&I Advance Date therein, for deposit in the Companion Distribution Account,
an aggregate amount of immediately available funds, to the extent of available
funds, equal to the amount to be distributed to the related Companion Holder
pursuant to the terms of this Agreement and the related Intercreditor Agreement.
Notwithstanding the preceding paragraph, the following provisions shall apply to
remittances relating to the Serviced Companion Loans related to Serviced Whole
Loans that have been deposited into an Other Securitization. On each Serviced
Whole Loan Remittance Date, the Master Servicer shall withdraw from the
Certificate Account (or applicable portion thereof) an aggregate amount equal to
all payments and/or collections actually received on such Serviced Companion
Loans prior to such dates; provided, however, that in no event shall the Master
Servicer be required to transfer to the Companion Distribution Account any
portion thereof that is payable or reimbursable to or at the direction of any
party to this Agreement under the other provisions of this Agreement and/or the
related Intercreditor Agreement. On each Serviced Whole Loan Remittance Date,
the Companion Paying Agent shall make the payments and remittance described in
Section 4.01(j) of this Agreement, which payments and remittance shall be made,
in each case, on the Serviced Whole Loan Remittance Date.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account, the
Floating Rate Account and the Companion Distribution Account may be subaccounts
of a single Eligible Account, which shall be maintained as a segregated account
separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, the
Master Servicer shall, as and when required hereunder, deliver to the Paying
Agent for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19 as Compensating Interest Payments
in connection with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates in connection with the purchase
of all of the Mortgage Loans and any REO Properties in the Trust
Fund pursuant to Section 9.01 (exclusive of that portion thereof
required to be deposited in the Certificate Account pursuant to
Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit
in the Lower-Tier Distribution Account pursuant to any provision of
this Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Master
Servicer shall not have delivered to the Paying Agent for deposit in the
Lower-Tier Distribution Account the amounts required to be deposited therein
pursuant to the provisions of this Agreement (including any P&I Advance pursuant
to Section 4.03(a) hereof), the Master Servicer shall pay the Paying Agent
interest on such late payment at the Prime Rate from and including the date such
payment was required to be made (without regard to any grace period set forth in
Section 7.01(a)(i)) until (but not including) the date such late payment is
received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Paying Agent that are
required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Distribution Amount and the amount of any Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively, and then immediately be deemed to withdraw from the
Upper-Tier Distribution Account and deposit in the Floating Rate Account an
aggregate amount of immediately available funds equal to the Class A-MFL
Available Funds and any Yield Maintenance Charges allocated to the Class A-MFL
Regular Interest for such Distribution Date as specified in Sections 4.01(d)(i)
and 4.01(k).
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Floating Rate Account, the Companion Distribution Account,
the Upper-Tier Distribution Account and the Lower-Tier Distribution Account may
be invested and, if invested, shall be invested by, and at the risk of, the
Paying Agent in Permitted Investments selected by the Paying Agent which shall
mature, unless payable on demand, not later such time on the Distribution Date
which will allow the Paying Agent to make withdrawals from the Distribution
Account, and any such Permitted Investment shall not be sold or disposed of
prior to its maturity unless payable on demand. All such Permitted Investments
shall be made in the name of "Xxxxx Fargo Bank, N.A., as Trustee for the Holders
of the X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC20 Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20 as their
interests may appear." None of the Trust, the Depositor, the Mortgagors, the
Master Servicer or the Special Servicer shall be liable for any loss incurred on
such Permitted Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional 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 Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
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, any provision herein to the contrary
notwithstanding.
As of the Closing Date, the Interest Reserve Account, the Floating
Rate Account, the Upper-Tier Distribution Account and the Lower-Tier
Distribution Account shall be located at the offices of the Paying Agent. The
Paying Agent shall give notice to the Trustee, the Master Servicer and the
Depositor of the location of the Interest Reserve Account, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account, the Floating Rate
Account, and, if established, the Gain-on-Sale Reserve Account and of the
proposed location of such accounts prior to any change thereof.
(c) [Reserved].
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the Companion Paying Agent for deposit into the Companion Distribution
Account.
(e) On or before the Closing Date, the Paying Agent shall establish
and maintain the Floating Rate Account in trust for the benefit of the Class
A-MFL Certificateholders. The Floating Rate Account shall (i) at all times be an
Eligible Account and (ii) relate solely to the Class A-MFL Certificates. The
Paying Agent shall deposit into the Floating Rate Account all amounts received
in respect of distributions on the Class A-MFL Regular Interest as specified in
Section 3.04(b), and shall immediately deposit into the Floating Rate Account
all amounts received under the Swap Contract.
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts, the Companion Distribution Account and the Floating Rate
Account. (a) The Master Servicer may, from time to time, make withdrawals from
the Certificate Account for any of the following purposes (without duplication
of the same payment or reimbursement):
(i) (A) no later than 4:00 p.m. New York City time on each P&I
Advance Date, to remit to the Paying Agent for deposit in the
Lower-Tier Distribution Account the amounts required to be remitted
pursuant to the first paragraph of Section 3.04(b) or that may be
applied to make P&I Advances pursuant to Section 4.03(a); and (B)
pursuant to the second paragraph of Section 3.04(b), to remit to the
Companion Paying Agent for deposit in the Companion Distribution
Account the amounts required to be so deposited on the date
specified in the related Intercreditor Agreement with respect to the
Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of
each Mortgage Loan, Companion Loan, Specially Serviced Mortgage Loan
and REO Loan, as applicable, the Master Servicer's rights to payment
of Servicing Fees pursuant to this clause (ii)(A) with respect to
any Mortgage Loan, Companion Loan, Specially Serviced Mortgage Loan
or REO Loan, as applicable, being limited to amounts received on or
in respect of such Mortgage Loan or Companion Loan (whether in the
form of payments, Liquidation Proceeds or Insurance and Condemnation
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance and Condemnation Proceeds), that
are allocable as recovery of interest thereon and (B) to pay the
Special Servicer any unpaid Special Servicing Fees, Liquidation Fees
and Workout Fees in respect of each Specially Serviced Mortgage Loan
or REO Loan or Corrected Mortgage Loan, as applicable, and any
expense incurred by the Special Servicer in connection with
performing any inspections pursuant to Section 3.12(a), remaining
unpaid first, out of related REO Revenues, Liquidation Proceeds and
Insurance and Condemnation Proceeds (provided that, in the case of
such payment relating to a Serviced Whole Loan, such payment shall
be made first, from amounts collected on the related Serviced
Subordinate Companion Loan, if any, and then from the related
Serviced Mortgage Loan and any related Serviced Pari Passu Companion
Loan(s), pro rata and pari passu in accordance with their Stated
Principal Balances, subject to the terms of the related
Intercreditor Agreement and provided, further, that with respect to
a Serviced Whole Loan, such expenses shall be reimbursed as among
the related Serviced Notes in the priority and subject to the
limitations set forth in the related Intercreditor Agreement), and
then out of general collections on the Mortgage Loans and REO
Properties;
(iii) to reimburse the Trustee and itself, as applicable (in
that order), for xxxxxxxxxxxx X&X Advances, the Master Servicer's or
the Trustee's right to reimbursement pursuant to this clause (iii)
being limited to amounts received which represent Late Collections
of interest (net of the related Servicing Fee) on and principal of
the particular Mortgage Loans and REO Loans with respect to which
such P&I Advances were made; provided, that with respect to a
Serviced Whole Loan, reimbursement of P&I Advances shall be made
only from amounts collected with respect to the related Serviced
Mortgage Loan (and not from any amounts collected with respect to
any Serviced Companion Loan) prior to reimbursement from other funds
unrelated to such Serviced Whole Loan on deposit in the Certificate
Account; provided, further, that if such P&I Advance becomes a
Workout-Delayed Reimbursement Amount, then such P&I Advance shall
thereafter be reimbursed from the portion of general collections and
recoveries on or in respect of the Mortgage Loans and REO Properties
on deposit in the Certificate Account from time to time that
represent collections or recoveries of principal to the extent
provided in clause (v) below (to be allocated between the Loan
Groups as set forth in the last paragraph of Section 3.05(a));
provided, further, that if such Advance becomes a Nonrecoverable
Advance, then such Advance shall be reimbursable pursuant to clause
(v) below;
(iv) to reimburse the Trustee, the Special Servicer and
itself, as applicable (in that order), for unreimbursed Servicing
Advances, the Master Servicer's, the Special Servicer's or the
Trustee's respective rights to receive payment pursuant to this
clause (iv) with respect to any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Companion Loan or REO Property being
limited to, as applicable, related payments, Liquidation Proceeds,
Insurance and Condemnation Proceeds and REO Revenues (provided that,
in case of such reimbursement relating to a Serviced Whole Loan,
such reimbursements shall be made first, from amounts collected on
the related Serviced Subordinate Companion Loan, if any, and then
from the related Serviced Mortgage Loan and any Serviced Pari Passu
Companion Loan(s), pro rata and pari passu based on their Stated
Principal Balances, subject to, and in accordance with the terms of
the related Intercreditor Agreement and provided that, in case of
such reimbursement relating to a Serviced Whole Loan, such
reimbursements shall be made from amounts collected on the related
Serviced Notes in accordance with the terms of the related
Intercreditor Agreement, prior to reimbursement from other funds
unrelated to such Serviced Whole Loan on deposit in the Certificate
Account); provided, however, that if such Servicing Advance becomes
a Workout Delayed Reimbursement Amount, then such Servicing Advance
shall thereafter be reimbursed from the portion of general
collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Certificate Account from time
to time that represent collections or recoveries of principal to the
extent provided in clause (v) below (to be allocated between the
Loan Groups as set forth in the last paragraph of Section 3.05(a));
provided, further, that if such Advance becomes a Nonrecoverable
Advance, then such Advance shall be reimbursable pursuant to clause
(v) below;
(v) to reimburse the Trustee, the Special Servicer and itself,
as applicable (in that order) (1) for Nonrecoverable Advances first,
out of REO Revenues, Liquidation Proceeds and Insurance and
Condemnation Proceeds received on the related Mortgage Loan and
Companion Loan (with respect to such Companion Loan, only for
Nonrecoverable Servicing Advances), then, out of the principal
portion of general collections on the Mortgage Loans and REO
Properties (to be allocated between the Loan Groups as set forth in
the last paragraph of Section 3.05(a)), then, to the extent the
principal portion of general collections is insufficient and with
respect to such excess only, subject to any exercise of the sole
option to defer reimbursement thereof pursuant to Section 3.19(c),
out of other collections on the Mortgage Loans and REO Properties
(to be allocated between the Loan Groups as set forth in the last
paragraph of Section 3.05(a)) and, (2) with respect to the
Workout-Delayed Reimbursement Amounts, out of the principal portion
of the general collections on the Mortgage Loans and REO Properties
(to be allocated between the Loan Groups as set forth in the last
paragraph of Section 3.05(a)) net of such amounts being reimbursed
pursuant to (1) above (provided that, in case of such reimbursement
relating to a Serviced Whole Loan and/or a Companion Loan related
thereto, such reimbursement shall be made first, from amounts
collected on the related Serviced Subordinate Companion Loan, if
any, and then from the related Serviced Mortgage Loan and any
related Serviced Pari Passu Companion Loan(s), pro rata and pari
passu based on their related Stated Principal Balances, subject to
and in accordance with the terms of the related Intercreditor
Agreement; and provided that, in case of such reimbursement with
respect to Nonrecoverable Servicing Advances relating to a Serviced
Whole Loan, such reimbursements in this clause (v) shall be made
first from any amounts collected on the related Serviced Notes in
accordance with the terms of the related Intercreditor Agreement
prior to reimbursement from other funds unrelated to such Serviced
Whole Loan on deposit in the Certificate Account; provided, further,
that with respect to a Serviced Mortgage Loan, reimbursement of
Nonrecoverable P&I Advances from funds collected from the related
Serviced Whole Loan shall be made only from amounts collected with
respect to such Serviced Mortgage Loan (and not from any amounts
collected with respect to any Serviced Companion Loan), in
accordance with the terms of the related Intercreditor Agreement
prior to reimbursement from other funds unrelated to such Serviced
Whole Loan on deposit in the Certificate Account) or to pay itself,
with respect to any Mortgage Loan and the Companion Loans, if
applicable, or REO Property any related earned Servicing Fee that
remained unpaid in accordance with clause (ii) above following a
Final Recovery Determination made with respect to such Mortgage Loan
or REO Property and the deposit into the Certificate Account of all
amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order) or any servicing party for a related
securitization trust in respect of any Serviced Companion Loan for
(a) any xxxxxxxxxxxx X&X Advance (including any such P&I Advance
that constitutes a Workout-Delayed Reimbursement Amount) pursuant to
clause (iii) above, to pay itself and/or the Trustee or such other
servicing party, as applicable, any interest accrued and payable
thereon in accordance with Sections 4.03(d) and 3.11(c), (b) any
unreimbursed Servicing Advances (including any such Servicing
Advance that constitutes a Workout-Delayed Reimbursement Amount)
pursuant to clause (iv) above, to pay itself or the Trustee or such
servicing party, as the case may be, any interest accrued and
payable thereon in accordance with Sections 3.03(d) and 3.11(c) or
(c) any Nonrecoverable Advances pursuant to clause (v) above, to pay
itself or the Trustee or such other servicing party, as the case may
be, any interest accrued and payable thereon; provided, that in all
events interest on P&I Advances on any Serviced Mortgage Loan shall
not be paid from funds to be paid to any other Serviced Companion
Loan;
(vii) to reimburse itself, the Special Servicer or the
Trustee, as the case may be, for any unreimbursed expenses
reasonably incurred by such Person in respect of any Breach or
Defect giving rise to a repurchase or substitution obligation of the
applicable Mortgage Loan Seller under Section 6 of the applicable
Mortgage Loan Purchase Agreement, including, without limitation, any
expenses arising out of the enforcement of the repurchase or
substitution obligation, each such Person's right to reimbursement
pursuant to this clause (vii) with respect to any Mortgage Loan or
Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage
Loan or Companion Loan that represents such expense in accordance
with clause (iv) of the definition of Purchase Price; provided that,
in case of such reimbursement relating to a Serviced Whole Loan,
such reimbursements shall be made first, from amounts collected on
the related Serviced Subordinate Companion Loan, if any, and then
from the related Serviced Mortgage Loan and any Serviced Pari Passu
Companion Loan(s) pro rata and pari passu based on their related
Stated Principal Balances to the extent provided in the related
Intercreditor Agreement;
(viii) in accordance with Section 2.03(e), to reimburse itself
or the Special Servicer, as the case may be, first, out of
Liquidation Proceeds, Insurance and Condemnation Proceeds, and then
out of general collections on the Mortgage Loans and REO Properties,
for any unreimbursed expense reasonably incurred by such Person in
connection with the enforcement of the applicable Mortgage Loan
Seller's obligations under Section 6 of the applicable Mortgage Loan
Purchase Agreement, but only to the extent that such expenses are
not reimbursable pursuant to clause (vii) above or otherwise
(provided that, in case of such reimbursement out of Liquidation
Proceeds, and Insurance and Condemnation Proceeds described above
relating to a Serviced Whole Loan, such reimbursements shall be made
first, from amounts collected on the related Serviced Subordinate
Companion Loan, if any, and then from the related Serviced Mortgage
Loan and any related Serviced Pari Passu Companion Loan(s) pro rata
and pari passu in accordance with their Stated Principal Balances,
subject to, and in accordance with the terms of the related
Intercreditor Agreement and then from general collections on the
Mortgage Loans);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of
general collections on the Mortgage Loans and REO Properties
(provided that, in case of such reimbursement relating to a Serviced
Whole Loan, such reimbursements shall be made first, from amounts
collected on the related Serviced Subordinate Companion Loan, if
any, and then from the related Serviced Mortgage Loan and any
Serviced Pari Passu Companion Loan(s), pro rata and pari passu in
accordance with their Stated Principal Balances, subject to, and in
accordance with the terms of the related Intercreditor Agreement
prior to being payable out of general collections);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment
income earned in respect of amounts relating to the Trust Fund held
in the Certificate Account and the Companion Distribution Account as
provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the Certificate Account and the
Companion Distribution Account for the period from and including the
prior Distribution Date to and including the P&I Advance Date
related to such Distribution Date) and (B) Penalty Charges (other
than Penalty Charges collected while the related Mortgage Loan is a
Specially Serviced Mortgage Loan), but only to the extent collected
from the related Mortgagor and to the extent that all amounts then
due and payable with respect to the related Mortgage Loan have been
paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other
than Special Servicing Fees) in accordance with Section 3.11(d); and
(b) to pay the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(c), Penalty Charges
collected on Specially Serviced Mortgage Loans (but only to the
extent collected from the related Mortgagor and to the extent that
all amounts then due and payable with respect to the related
Specially Serviced Mortgage Loan have been paid and such Penalty
Charges are not needed to pay interest on Advances or costs and
expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the Certificate
Account in error;
(xii) to pay itself, the Special Servicer, the Depositor or
any of their respective directors, officers, members, managers,
employees and agents, as the case may be, out of general
collections, any amounts payable to any such Person pursuant to
Section 6.03(a) or 6.03(b) (provided that, in case of such payments
relating to a Serviced Whole Loan, such reimbursements shall be made
first, from amounts collected on the related Serviced Subordinate
Companion Loan, if any, and then from the related Serviced Mortgage
Loan and any related Serviced Pari Passu Companion Loan(s), pro rata
and pari passu in accordance with their Stated Principal Balances,
subject to and in accordance with the terms of the related
Intercreditor Agreement prior to being payable out of general
collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d)
and 10.01(f) to the extent payable out of the Trust Fund, (b) the
cost of any Opinion of Counsel contemplated by Section 12.01(a) or
12.01(c) in connection with an amendment to this Agreement requested
by the Trustee or the Master Servicer, which amendment is in
furtherance of the rights and interests of Certificateholders and
(c) the cost of obtaining the REO Extension contemplated by Section
3.16(a) (provided that, in case of such payments relating to a
Serviced Whole Loan, such reimbursements shall be made first, from
amounts collected on the related Serviced Subordinate Companion
Loan, if any, and then from the amounts collected on the related
Serviced Mortgage Loan and any related Serviced Pari Passu Companion
Loan(s), pro rata and pari passu in accordance with their Stated
Principal Balances, subject to and in accordance with the terms of
the related Intercreditor Agreement prior to being payable out of
general collections);
(xiv) to pay out of general collections on the Mortgage Loans
and REO Properties any and all federal, state and local taxes
imposed on the Upper-Tier REMIC, the Lower-Tier REMIC, or any of
their assets or transactions, together with all incidental costs and
expenses, to the extent that none of the Master Servicer, the
Special Servicer, the Paying Agent or the Trustee is liable therefor
pursuant to Section 10.01(g);
(xv) to reimburse the Trustee and the Paying Agent out of
general collections on the Mortgage Loans and REO Properties for
expenses incurred by and reimbursable to it by the Trust Fund
pursuant to Section 10.01(c);
(xvi) to pay the applicable Mortgage Loan Seller or any other
Person, with respect to each Mortgage Loan, if any, previously
purchased by such Person pursuant to this Agreement, all amounts
received thereon subsequent to the date of purchase relating to
periods after the date of purchase; or, in the case of the
substitution for a Mortgage Loan by a Mortgage Loan Seller pursuant
to Section 2.03(b), to pay such Mortgage Loan Seller with respect to
the replaced Mortgage Loan all amounts received thereon subsequent
to the date of substitution, and with respect to the related
Qualified Substitute Mortgage Loan(s), all Monthly Payments due
thereon during or prior to the month of substitution, in accordance
with the last two sentences of the first paragraph of Section
2.03(b);
(xvii) to remit to the Paying Agent for deposit in the
Interest Reserve Account the amounts required to be deposited in the
Interest Reserve Account pursuant to Section 3.25;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the Companion Paying Agent for deposit into
the Companion Distribution Account the amounts required to be
deposited pursuant to Section 3.04(b) without duplication of amounts
remitted to the Companion Paying Agent pursuant to clause (i) above;
and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
The Master Servicer shall also be entitled to make withdrawals from
time to time, from the Certificate Account of amounts necessary for the payments
or reimbursement of amounts required to be paid to the applicable Non-Serviced
Master Servicer, the applicable Non-Serviced Special Servicer, the applicable
Non-Serviced Trustee or the applicable Non-Serviced Paying Agent by the holder
of a Non-Serviced Mortgage Loan pursuant to the applicable Non-Serviced
Intercreditor Agreement and the applicable Non-Serviced Pooling Agreement.
The Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer or the Paying
Agent from the Certificate Account amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a Servicing Officer of the Special
Servicer or a Responsible Officer of the Paying Agent describing the item and
amount to which the Special Servicer or the Paying Agent is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account.
To the extent a Nonrecoverable Advance or Workout Delayed
Reimbursement Amount with respect to a Mortgage Loan is required to be
reimbursed from the principal portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the principal collection available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances and Workout Delayed Reimbursement Amounts related to such other Loan
Group). To the extent a Nonrecoverable Advance with respect to a Mortgage Loan
is required to be reimbursed from the interest portion of the general
collections on the Mortgage Loans pursuant to clauses (iii), (iv) or (v) of this
Section 3.05(a), such reimbursement shall be made first, from the interest
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and if the interest collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the interest
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group);
provided, however, that this provision shall not result in any change in the
interest distributions required under Section 4.01(a)(i) of this Agreement.
(b) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to be deemed to make deposits of the Lower-Tier
Distribution Amount pursuant to Section 4.01(b) and the amount of
any Yield Maintenance Charges distributable pursuant to Section
4.01(d) in the Upper-Tier Distribution Account and to make
distributions on the Class LR Certificates pursuant to Section
4.01(b);
(ii) to pay to the Trustee and the Paying Agent or any of
their directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person, with respect
to the Mortgage Loans, pursuant to Section 8.05(b);
(iii) to pay the Trustee, the Trustee Fee as contemplated by
Section 8.05(a) hereof with respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by
Section 3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by
Section 12.01(a) or 12.01(c) in connection with any amendment to
this Agreement requested by the Trustee or the Paying Agent, which
amendment is in furtherance of the rights and interests of
Certificateholders, in each case, to the extent not paid pursuant to
Section 12.01(g);
(v) to pay any and all federal, state and local taxes imposed
on either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets
or transactions of any such REMIC, together with all incidental
costs and expenses, to the extent none of the Trustee, the Paying
Agent, the REMIC Administrator, the Master Servicer or the Special
Servicer is liable therefor pursuant to Section 10.01(g);
(vi) to pay the REMIC Administrator any amounts reimbursable
to it pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts deposited by
the Master Servicer in the Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Lower-Tier Distribution
Account at the termination of this Agreement pursuant to Section
9.01.
(c) [Reserved].
(d) The Paying Agent on behalf of the Trustee may make, or be deemed
to make, withdrawals from the Upper-Tier Distribution Account for any of the
following purposes:
(i) to make distributions to Certificateholders (other than
Holders of the Class A-MFL Certificates and the Class LR
Certificates) and to the Floating Rate Account in respect of the
Class A-MFL Regular Interest on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, subject to the penultimate
paragraph of Section 3.04(b);
(ii) to clear and terminate the Upper-Tier Distribution
Account at the termination of this Agreement pursuant to Section
9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii) and (iii), then the Trustee Fee shall be paid in full prior
to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and in
the event that amounts on deposit in the Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of such Trustee
Fee, the Trustee shall be paid based on the amount of such fees and (ii) if
amounts on deposit in the Certificate Account are not sufficient to reimburse
the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and second to the Master Servicer.
(f) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions
pursuant to Section 4.01(j).
(g) The Paying Agent shall make withdrawals from the Floating Rate
Account only for the following purposes:
(i) to withdraw amounts deposited in the Floating Rate Account
in error and pay such amounts to the Persons entitled thereto;
(ii) to pay any funds required to be paid to the Swap
Counterparty under the Swap Contract as specified in Section
3.32(c), and to pay costs or expenses, if any, related to the Swap
Contract pursuant to Section 3.32(f);
(iii) to make distributions to the Holders of the Class A-MFL
Certificates pursuant to Section 4.01(k); and
(iv) to clear and terminate the Floating Rate Account pursuant
to Section 9.01.
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account. (a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Companion Distribution Account, or any
Servicing Account (for purposes of this Section 3.06, an "Investment Account"),
the Special Servicer may direct any depository institution maintaining the REO
Account (also for purposes of this Section 3.06, an "Investment Account") to
invest or if it is such depository institution, may itself invest, the funds
held therein, only in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, (i) no later than the
Business Day immediately preceding the next succeeding date on which such funds
are required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the depository institution maintaining such account is the
obligor thereon and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the depository
institution maintaining such account is the obligor thereon. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such). The Master Servicer (in the case of the Certificate
Account, the Companion Distribution Account or any Servicing Account maintained
by or for the Master Servicer), the Special Servicer (in the case of the REO
Account or any Servicing Account maintained by or for the Special Servicer) on
behalf of the Trustee, shall maintain continuous physical possession of any
Permitted Investment of amounts in the Certificate Account, the Companion
Distribution Account, the Servicing Accounts or REO Account, as applicable, that
is either (i) a "certificated security," as such term is defined in the UCC
(such that the Trustee shall have control pursuant to Section 8-106 of the UCC)
or (ii) other property in which a secured party may perfect its security
interest by physical possession under the UCC or any other applicable law. In
the case of any Permitted Investment held in the form of a "security
entitlement" (within the meaning of Section 8-102(a)(17) of the UCC), the Master
Servicer or the Special Servicer, as applicable, shall take or cause to be taken
such action as the Trustee deems reasonably necessary to cause the Trustee to
have control over such security entitlement. In the event amounts on deposit in
an Investment Account are at any time invested in a Permitted Investment payable
on demand, the Master Servicer (in the case of the Certificate Account, the
Companion Distribution Account, or any Servicing Account maintained by or for
the Master Servicer) or the Special Servicer (in the case of the REO Account or
any Servicing Account maintained by or for the Special Servicer) shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (a) all amounts then payable thereunder and
(b) the amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer, the Special Servicer or
the Trustee, as the case may be, that such Permitted Investment
would not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, the Companion Distribution Account or any Servicing
Account maintained by or for the Master Servicer to the extent of the Net
Investment Earnings, if any, with respect to such account for the period from
and including the prior Distribution Date to and including the P&I Advance Date
related to such Distribution Date, shall be for the sole and exclusive benefit
of the Master Servicer to the extent (with respect to Servicing Accounts) not
required to be paid to the related Mortgagor and shall be subject to its
withdrawal, or withdrawal at its direction, in accordance with Section 3.03 or
Section 3.05(a), as the case may be. Interest and investment income realized on
funds deposited in the REO Account or any Servicing Account maintained by or for
the Special Servicer, to the extent of the Net Investment Earnings, if any, with
respect to such account for each period from and including any Distribution Date
to and including the immediately succeeding P&I Advance Date, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(c). In the event that any loss shall
be incurred in respect of any Permitted Investment (as to which the Master
Servicer or Special Servicer, as applicable, would have been entitled to any Net
Investment Earnings hereunder) directed to be made by the Master Servicer or
Special Servicer, as applicable, and on deposit in any of the Certificate
Account, the Companion Distribution Account, the Servicing Account or the REO
Account, the Master Servicer (in the case of the Certificate Account, the
Companion Distribution Account or any Servicing Account maintained by or for the
Master Servicer), the Special Servicer (in the case of the REO Account or any
Servicing Account maintained by or for the Special Servicer) shall deposit
therein, no later than the P&I Advance Date, without right of reimbursement, the
amount of Net Investment Loss, if any, with respect to such account for the
period from and including the prior Distribution Date to and including the P&I
Advance Date related to such Distribution Date, provided that neither the Master
Servicer nor the Special Servicer shall be required to deposit any loss on an
investment of funds in an Investment Account if such loss is incurred solely as
a result of the insolvency of the federal or state chartered depository
institution or trust company that holds such Investment Account, so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made (and,
with respect to the Master Servicer, such federal or state chartered depository
institution or trust company is not an Affiliate of the Master Servicer unless
such depository institution or trust company satisfied the qualification set
forth in the definition of Eligible Account both (x) at the time the investment
was made and (y) 30 days prior to such insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Master Servicer may and, upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The Master Servicer (with respect to the Mortgage
Loans and the Specially Serviced Mortgage Loans and any Serviced Mortgage Loan
other than a Non-Serviced Mortgage Loan) or the Special Servicer (with respect
to REO Properties other than a Non-Serviced Mortgaged Property) shall use its
efforts consistent with the Servicing Standards to cause the Mortgagor to
maintain (other than with respect to a Non-Serviced Mortgage Loan), to the
extent required by the terms of the related Mortgage Loan documents all
insurance coverage as is required under the related Mortgage Loan except to the
extent that the failure of the related Mortgagor to do so is an Acceptable
Insurance Default. If the Mortgagor does not so maintain such insurance
coverage, subject to its recoverability determination with respect to any
required Servicing Advance, the Master Servicer (with respect to the Mortgage
Loans and any Serviced Whole Loan, and other than a Non-Serviced Mortgage Loan)
or the Special Servicer (with respect to REO Properties other than a
Non-Serviced Mortgaged Property) shall maintain all insurance coverage as is
required under the related Mortgage, but only in the event the Trustee has an
insurable interest therein and such insurance is available to the Master
Servicer or the Special Servicer and, if available, can be obtained at
commercially reasonable rates, as determined by the Master Servicer (with
respect to the Mortgage Loans and the Specially Serviced Mortgage Loans and any
Serviced Whole Loan, and other than a Non-Serviced Mortgage Loan) or the Special
Servicer (with respect to REO Properties other than a Non-Serviced Mortgaged
Property) except to the extent that the failure of the related Mortgagor to do
so is an Acceptable Insurance Default; provided, however, that if any Mortgage
permits the holder thereof to dictate to the Mortgagor the insurance coverage to
be maintained on such Mortgaged Property, the Master Servicer or the Special
Servicer, as applicable, shall impose such insurance requirements as are
consistent with the Servicing Standards taking into account the insurance in
place at the closing of the Mortgage Loan, provided that, with respect to the
immediately preceding proviso, the Master Servicer will be obligated to use
reasonable efforts to cause the Mortgagor to maintain (or to itself maintain)
insurance against property damage resulting from terrorist or similar acts
unless the Mortgagor's failure is an Acceptable Insurance Default as determined
by the Special Servicer (with the consent of the Directing Certificateholder)
and only in the event the Trustee has an insurable interest therein and such
insurance is available to the Master Servicer and, if available, can be obtained
at commercially reasonable rates. The Master Servicer will be entitled to rely
on insurance consultants (at the Master Servicer's expense) in determining
whether any insurance is available at commercially reasonable rates. Subject to
Section 3.17(a) and the costs of such insurance being reimbursed or paid to the
Special Servicer as provided in the penultimate sentence of this paragraph, the
Special Servicer shall maintain for each REO Property (other than a Non-Serviced
Mortgaged Property) no less insurance coverage than was previously required of
the Mortgagor under the related Mortgage Loan and Companion Loan unless the
Special Servicer, with Directing Certificateholder consent, determines that such
insurance is not available at commercially reasonable rates. All Insurance
Policies maintained by the Master Servicer or the Special Servicer shall (i)
contain a "standard" mortgagee clause, with loss payable to the Master Servicer
on behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans and Companion Loans other than REO Properties) or to the Special
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of REO Properties), (ii) be in the name of the Trustee (in the case of
insurance maintained in respect of REO Properties), (iii) include coverage in an
amount not less than the lesser of (x) the full replacement cost of the
improvements securing Mortgaged Property or the REO Property, as applicable, or
(y) the outstanding principal balance owing on the related Mortgage Loan,
Companion Loan or REO Loan, as applicable, and in any event, the amount
necessary to avoid the operation of any co-insurance provisions, (iv) include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents),
(v) be noncancellable without 30 days prior written notice to the insured party
(except in the case of nonpayment, in which case such policy shall not be
cancelled without 10 days prior notice) and (vi) be issued by a Qualified
Insurer authorized under applicable law to issue such Insurance Policies. Any
amounts collected by the Master Servicer under any such Insurance Policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case in accordance with the Servicing Standards and the
provisions of the related Mortgage Loan and Companion Loan) shall be deposited
in the Certificate Account, subject to withdrawal pursuant to Section 3.05(a).
Any costs incurred by the Master Servicer in maintaining any such Insurance
Policies in respect of Mortgage Loans and Companion Loans (other than REO
Properties) (i) if the Mortgagor defaults on its obligation to do so, shall be
advanced by the Master Servicer as a Servicing Advance and will be charged to
the related Mortgagor and (ii) shall not, for purposes of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan and Companion Loan, notwithstanding that the terms of
such Mortgage Loan or Companion Loan so permit. Any cost incurred by the Special
Servicer in maintaining any such Insurance Policies with respect to REO
Properties shall be an expense of the Trust payable out of the related REO
Account pursuant to Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor, advanced by the Master Servicer as a Servicing Advance.
The foregoing provisions of this paragraph shall apply to a Serviced Whole Loan
as if it were a single "Mortgage Loan".
Notwithstanding the foregoing, with respect to the Mortgage Loans
(other than a Non-Serviced Mortgage Loan) or a Serviced Whole Loan that either
(x) require the Mortgagor to maintain "all risk" property insurance (and do not
expressly permit an exclusion for terrorism) or (y) contain provisions generally
requiring the applicable Mortgagor to maintain insurance in types and against
such risks as the holder of such Mortgage Loan or a Serviced Whole Loan
reasonably requires from time to time in order to protect its interests, the
Master Servicer will be required to, consistent with the Servicing Standards,
(A) actively monitor whether the insurance policies for the related Mortgaged
Property contain Additional Exclusions, (B) request the Mortgagor to either
purchase insurance against the risks specified in the Additional Exclusions or
provide an explanation as to its reasons for failing to purchase such insurance
and (C) notify the Special Servicer if it has knowledge that any insurance
policy contains Additional Exclusions or if it has knowledge that any Mortgagor
fails to purchase the insurance requested to be purchased by the Master Servicer
pursuant to clause (B) above. If the Special Servicer determines in accordance
with the Servicing Standards that such failure is not an Acceptable Insurance
Default, the Special Servicer shall be required to notify the Master Servicer
and the Master Servicer shall use efforts consistent with the Servicing Standard
to cause the Mortgagor to maintain such insurance. Furthermore, the Special
Servicer or the Master Servicer, as applicable, shall inform the Rating Agencies
as to such conclusions for those Mortgage Loans that (i) have one of the ten
(10) highest outstanding Stated Principal Balances of all of the Mortgage Loans
then included in the Trust or (ii) comprise more than 5% of the outstanding
Stated Principal Balance of the Mortgage Loans then included in the Trust.
During the period that the Special Servicer or the Master Servicer, as
applicable, is evaluating the availability of such insurance, none of the Master
Servicer, the Special Servicer or the Directing Certificateholder will be liable
for any loss related to its failure to require the Mortgagor to maintain such
insurance and will not be in default of its obligations as a result of such
failure and the Master Servicer will not itself maintain such insurance or cause
such insurance to be maintained.
(b) (i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket Insurance Policy with a Qualified Insurer insuring
against fire and hazard losses on all of the Mortgage Loans, including a
Serviced Whole Loan, or REO Properties (other than with respect to a
Non-Serviced Mortgaged Property), as the case may be, required to be serviced
and administered hereunder, then, to the extent such Insurance Policy provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer shall conclusively be deemed to have satisfied
its obligation to cause fire and hazard insurance to be maintained on the
related Mortgaged Properties or REO Properties. Such Insurance Policy may
contain a deductible clause, in which case the Master Servicer or the Special
Servicer shall, if there shall not have been maintained on the related Mortgaged
Property or REO Property a fire and hazard Insurance Policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such Insurance Policy, promptly deposit into
the Certificate Account from its own funds the amount of such loss or losses
that would have been covered under the individual policy but are not covered
under the blanket Insurance Policy because of such deductible clause to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan, including a Serviced Whole Loan, or in the absence
of such deductible limitation, the deductible limitation which is consistent
with the Servicing Standards. In connection with its activities as administrator
and Master Servicer of the Mortgage Loans, the Master Servicer agrees to prepare
and present, on behalf of itself, the Trustee and Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent consistent with
the Servicing Standards, may maintain, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance.
(ii) If the Master Servicer or the Special Servicer shall
cause any Mortgaged Property or REO Property to be covered by a
master single interest or force-placed insurance policy with a
Qualified Insurer naming the Master Servicer or the Special Servicer
on behalf of the Trustee as the loss payee, then to the extent such
Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special
Servicer shall conclusively be deemed to have satisfied its
obligation to cause such insurance to be maintained on the related
Mortgaged Properties and REO Properties. In the event the Master
Servicer or the Special Servicer shall cause any Mortgaged Property
or REO Property to be covered by such master single interest or
force-placed insurance policy, the incremental costs of such
insurance applicable to such Mortgaged Property or REO Property
(i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgaged Property or REO Property is
covered thereby) shall be paid by the Master Servicer as a Servicing
Advance. Such master single interest or force-placed policy may
contain a deductible clause, in which case the Master Servicer or
the Special Servicer shall, in the event that there shall not have
been maintained on the related Mortgaged Property or REO Property a
policy otherwise complying with the provisions of Section 3.07(a),
and there shall have been one or more losses which would have been
covered by such policy had it been maintained, deposit into the
Certificate Account from its own funds the amount not otherwise
payable under the master single or force-placed interest policy
because of such deductible clause, to the extent that any such
deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, including a Serviced Whole Loan, or, in the
absence of any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standards.
(c) Each of the Master Servicer and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering the Master
Servicer's and the Special Servicer's, as applicable, officers and employees
acting on behalf of the Master Servicer and the Special Servicer in connection
with its activities under this Agreement. Notwithstanding the foregoing, so long
as the long term debt or the deposit obligations or claims-paying ability of the
Master Servicer or the Special Servicer, as applicable, is rated at least "Baa3"
by Xxxxx'x and "A" by S&P, the Master Servicer or the Special Servicer, as
applicable, shall be allowed to provide self-insurance with respect to a
fidelity bond and an "errors and omissions" Insurance Policy. Such amount of
coverage shall be in such form and amount as are consistent with the Servicing
Standards. Coverage of the Master Servicer or the Special Servicer under a
policy or bond obtained by an Affiliate of the Master Servicer or the Special
Servicer and providing the coverage required by this Section 3.07(c) shall
satisfy the requirements of this Section 3.07(c). The Special Servicer and the
Master Servicer will promptly report in writing to the Trustee any material
changes that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicer and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time the Master Servicer determines in accordance with
the Servicing Standards that any Mortgaged Property (other than a Non-Serviced
Mortgaged Property) is in a federally designated special flood hazard area (and
such flood insurance has been made available), the Master Servicer will use
efforts consistent with the Servicing Standards to cause the related Mortgagor
(in accordance with applicable law and the terms of the Mortgage Loan documents)
to maintain, and, if the related Mortgagor shall default in its obligation to so
maintain, shall itself maintain to the extent available at commercially
reasonable rates (as determined by the Master Servicer in accordance with the
Servicing Standards and to the extent the Trustee, as mortgagee, has an
insurable interest therein), flood insurance in respect thereof, but only to the
extent the related Mortgage Loan or Companion Loan permits the mortgagee to
require such coverage and the maintenance of such coverage is consistent with
the Servicing Standards. The Directing Certificateholder shall have no liability
with respect to such determination. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan or Companion Loan, and (ii) the maximum amount of insurance which is
available under the National Flood Insurance Act of 1968, as amended. If the
cost of any insurance described above is not borne by the Mortgagor, the Master
Servicer shall promptly make a Servicing Advance for such costs.
(e) During all such times as any REO Property (other than with
respect to a Non-Serviced Mortgaged Property) shall be located in a federally
designated special flood hazard area, the Special Servicer will cause to be
maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Master Servicer as a Servicing
Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) As to each Mortgage Loan (other than a Non-Serviced Mortgage
Loan) or Companion Loan which contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall
(or may at the mortgagee's option) become due and payable upon the
sale or other transfer of an interest in the related Mortgaged
Property or equity interests in the Mortgagor or principals of the
Mortgagor; or
(ii) provides that such Mortgage Loan or Companion Loan may
not be assumed without the consent of the mortgagee in connection
with any such sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) any right
it may have with respect to such Mortgage Loan or Companion Loan (x) to
accelerate the payments thereon or (y) to withhold its consent, provided that,
(i) with respect to all Non-Specially Serviced Mortgage Loans, the Master
Servicer has obtained the prior written consent of the Special Servicer, which
consent shall be deemed given 15 Business Days after receipt (unless earlier
objected to) by the Special Servicer from the Master Servicer of the Master
Servicer's written analysis and recommendation with respect to such waiver or
exercise of such right together with such other information reasonably required
by the Special Servicer, (ii) with respect to all Specially Serviced Mortgage
Loans and Non-Specially Serviced Mortgage Loans, the Special Servicer shall,
prior to consenting to such a proposed action of the Master Servicer, obtain,
and, prior to itself taking such an action, the Special Servicer shall obtain,
the prior written consent of the Directing Certificateholder, which consent
shall be deemed given 10 Business Days after receipt (unless earlier objected
to) by the Directing Certificateholder of the Master Servicer's and/or Special
Servicer's, as applicable, analysis and recommendation with respect to such
waiver together with such other information reasonably required by the Directing
Certificateholder, and (iii) with respect to any Mortgage Loan, together with
any other Mortgage Loans cross-collateralized with such Mortgage Loan, or
together with all other Mortgage Loans with the same or an affiliated Mortgagor
(x) with a Stated Principal Balance greater than or equal to $20,000,000, (y)
with a Stated Principal Balance greater than 5% of the aggregate Stated
Principal Balance of all the Mortgage Loans then outstanding or (z) together
with any other Mortgage Loans cross-collateralized with such Mortgage Loan, or
together with all other Mortgage Loans with the same or an affiliated Mortgagor,
is one of the ten largest of the then outstanding Mortgage Loans, by Stated
Principal Balance, the Master Servicer or the Special Servicer, as applicable,
shall not take such action unless it has obtained confirmation from each Rating
Agency stating that none of the then-current rating or ratings of all
outstanding Classes of the Certificates and, if applicable, of the Serviced
Companion Loan Securities, would be qualified, downgraded or withdrawn by such
Rating Agency, as a result of such waiver.
If any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or
Companion Loan provides that such Mortgage Loan or Companion Loan may be assumed
or transferred without the consent of the mortgagee provided that certain
conditions are satisfied, then for so long as such Mortgage Loan or Companion
Loan is being serviced under this Agreement, the Special Servicer, with respect
to all Specially Serviced Mortgage Loans (other than a Non-Serviced Mortgage
Loan), on behalf of the Trustee as the mortgagee of record, shall determine in
accordance with the Servicing Standards whether such conditions have been
satisfied, or, with respect to any Non-Specially Serviced Mortgage Loan (other
than a Non-Serviced Mortgage Loan) which does not allow the mortgagee discretion
in approving a transfer or assumption or allow for discretion in determining
whether conditions to a transfer or assumption have been satisfied, the Master
Servicer, on behalf of the Trustee as mortgagee of record, shall make such
determination with respect to whether such conditions have been satisfied.
(b) As to each Mortgage Loan (other than a Non-Serviced Mortgage
Loan) and Companion Loan which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall
(or may at the mortgagee's option) become due and payable upon the
creation of any additional lien or other encumbrance on the related
Mortgaged Property or equity interests in the Mortgagor or
principals of the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of
any such additional lien or other encumbrance on the related
Mortgaged Property;
then, for so long as such Mortgage Loan and Companion Loan are serviced under
this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) any right
it may have with respect to such Mortgage Loan or Companion Loan (x) to
accelerate the payments thereon or (y) to withhold its consent, provided that,
(i) (a) with respect to all Non-Specially Serviced Mortgage Loans, the Master
Servicer has made a recommendation and obtained the prior written consent of the
Special Servicer, which consent shall be deemed given fifteen (15) Business Days
after receipt (unless earlier objected to) by the Special Servicer from the
Master Servicer of the Master Servicer's analysis and recommendation with
respect to such waiver or exercise of such right together with such other
information reasonably required by the Special Servicer and (b) the Master
Servicer or the Special Servicer, as the case may be, has obtained (i) the prior
written consent of the Directing Certificateholder, which consent shall be
deemed given 10 Business Days after receipt by the Directing Certificateholder
of the Master Servicer's and/or Special Servicer's, as applicable, written
analysis and recommendation with respect to such waiver together with such other
information reasonably required by the Directing Certificateholder, and (ii)
from each Rating Agency a confirmation that such waiver would not result in the
downgrade, withdrawal or qualification of the then-current ratings on any Class
of outstanding Certificates or any class of the Serviced Companion Loan
Securities if such Mortgage Loan (1) (together with any other Mortgage Loans
cross-collateralized with such Mortgage Loan) has an outstanding principal
balance that is greater than or equal to 2% of the Stated Principal Balance of
the outstanding Mortgage Loans or (2) has an LTV Ratio (including existing and
proposed debt) greater than 85% (including any proposed debt) or (3) a Debt
Service Coverage Ratio less than 1.20x (in each case, determined based upon the
aggregate of the Stated Principal Balance of the Mortgage Loan and the principal
amount of the proposed additional loan) or (4) is one of the ten (10) largest
Mortgage Loans (by Stated Principal Balance) or (5) has a Stated Principal
Balance over $20,000,000.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be further encumbered without the consent of the
mortgagee provided that certain conditions are satisfied and there is no lender
discretion with respect to the satisfaction of such conditions, then for so long
as such Mortgage Loan or Companion Loan is being serviced under this Agreement,
the Special Servicer, with respect to all Specially Serviced Mortgage Loans
(other than a Non-Serviced Mortgage Loan), on behalf of the Trustee as the
mortgagee of record, shall determine whether such conditions have been
satisfied, or, with respect to all Non-Specially Serviced Mortgage Loans (other
than a Non-Serviced Mortgage Loan), the Master Servicer, on behalf of the
Trustee as mortgagee of record, shall make such determination with respect to
whether such conditions have been satisfied.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master Servicer nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Master Servicer and the Special Servicer shall each provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the other and each
Rating Agency with respect to each Mortgage Loan. To the extent not previously
provided, the Master Servicer shall provide copies of any waivers it effects
pursuant to Section 3.08(a) or (b) to the Special Servicer and each Rating
Agency with respect to each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Master Servicer may with respect to Non-Specially Serviced
Mortgage Loans or a Serviced Companion Loan (other than a Non-Serviced Mortgage
Loan or a Non-Serviced Companion Loan), without any Directing Certificateholder
approval, Rating Agency confirmation or Special Servicer approval (provided the
Master Servicer delivers notice thereof to the Special Servicer and the
Directing Certificateholder, except to the extent that the Special Servicer or
the Directing Certificateholder, as the case may be, notifies the Master
Servicer that such party does not desire to receive copies of such items):
(i) approve routine leasing activity with respect to: (1)
leases for properties for less than the lesser of (a) 30,000 square
feet and (b) 30% of the related Mortgaged Property; provided that no
such lease is a Ground Lease); and provided further that, the Master
Servicer shall not grant or approve (but shall forward to the
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;
(ii) approve 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) 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);
(iii) subject to other restrictions herein regarding Principal
Prepayments, waive any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(iv) with respect to any Non-Specially Serviced Mortgage Loans
(or serviced Companion Loans), the Master Servicer may (without the
consent of the 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) (or serviced Companion
Loan(s)) to such easement, right-of-way or similar agreement;
provided that the 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 the Upper-Tier REMIC or the Lower-Tier REMIC will not
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 the Upper-Tier REMIC or the Lower-Tier REMIC as
a result thereof;
(v) consent 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 has an unpaid
principal balance of less than $5,000,000; and
(vi) waive any Penalty Charges on any Non-Specially Serviced
Mortgage Loan in connection with any delinquent payment on such
Mortgage Loan;
provided that any such modification, waiver or amendment (w) would
not in any way affect a payment term of the Certificates, (x) would not
constitute a "significant modification" of such Mortgage Loan or Companion Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
cause either the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a
REMIC, (y) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standards, and (z) agreeing to such modification,
waiver or amendment shall not violate the terms, provisions or limitations of
this Agreement or any Intercreditor Agreement; provided, further, that if in the
reasonable judgment of the 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 this Section 3.08 is not included within the scope of this
clause (e), the Master Servicer shall forward the Mortgagor's request along with
its written analysis and recommendation to the Special Servicer for its
approval; provided, further, that with respect to any Non-Specially Serviced
Mortgage Loan 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
loan proceeds of the applicable Non-Specially Serviced Mortgage Loan, the Master
Servicer shall forward the Mortgagor's request along with its written analysis
and recommendation to the Special Servicer for approval (which request shall be
deemed approved if the request is not denied by the Special Servicer in writing
to the Master Servicer within ten (10) Business Days of the Special Servicer's
receipt of such request). The foregoing is intended to be an itemization of
certain actions the Master Servicer may take without having to obtain the
approval of any other party and is not intended to limit the responsibilities of
the Master Servicer hereunder.
(f) Notwithstanding any other provision of this Agreement, the
Master Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause without the consent of the Special
Servicer and the Special Servicer may not waive its rights or grant its consent
under any "due-on-sale" or "due-on-encumbrance" clause relating to a
Non-Specially Serviced Mortgage Loan or relating to any Specially Serviced
Mortgage Loan without the consent of the Directing Certificateholder. The
Directing Certificateholder shall have 10 Business Days after receipt of notice
along with the Master Servicer's or Special Servicer's recommendation and
analysis with respect to such waiver and any additional information the
Directing Certificateholder may reasonably request from the Special Servicer of
a proposed waiver or consent under any "due on sale" or "due on encumbrance"
clause in which to grant or withhold its consent (provided that if the Special
Servicer fails to receive a response to such notice from the Directing
Certificateholder in writing within such period, then the Directing
Certificateholder shall be deemed to have consented to such proposed waiver or
consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.29, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans (other than a Non-Serviced Mortgage Loan) or Companion Loans, as come into
and continue in default as to which no satisfactory arrangements can be made for
collection of delinquent payments, and which are not released from the Trust
Fund pursuant to any other provision hereof. The foregoing is subject to the
provision that, in any case in which a Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Master Servicer or Special Servicer shall
not be required to make a Servicing Advance and expend funds toward the
restoration of such property unless the Special Servicer has determined in its
reasonable discretion that such restoration will increase the net proceeds of
liquidation of such Mortgaged Property to Certificateholders after reimbursement
to the Master Servicer for such Servicing Advance, and the Master Servicer or
Special Servicer has not determined that such Servicing Advance together with
accrued and unpaid interest thereon would constitute a Nonrecoverable Advance.
The costs and expenses incurred by the Special Servicer in any such proceedings
shall be advanced by the Master Servicer, provided that, in each case, such cost
or expense would not, if incurred, constitute a Nonrecoverable Servicing
Advance. Nothing contained in this Section 3.09 shall be construed so as to
require the Master Servicer or the Special Servicer, on behalf of the Trust, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Master Servicer or the Special Servicer in its reasonable judgment taking
into account the factors described in Section 3.18(b) and the results of any
Appraisal obtained pursuant to the following sentence, all such bids to be made
in a manner consistent with the Servicing Standards. If and when the Special
Servicer or the Master Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan or defaulted Companion Loan, whether for purposes of
bidding at foreclosure or otherwise, the Special Servicer or the Master
Servicer, as the case may be, is authorized to have an Appraisal performed with
respect to such property by an Independent MAI-designated appraiser the cost of
which shall be paid by the Master Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a
Servicing Advance) to the effect that the holding of such personal
property by the Trust Fund (to the extent not allocable to a
Companion Loan) will not cause the imposition of a tax on the
Upper-Tier REMIC or the Lower-Tier REMIC under the REMIC Provisions
or cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Uncertificated Lower-Tier
Interest, the Class A-MFL Regular Interest or Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.29, neither the Master Servicer nor the Special Servicer shall, on
behalf of the Trustee, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders and/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such
actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions,
for such purposes taking into account any insurance coverage
provided pursuant to any environmental insurance polices in effect
and obtained on behalf of the Mortgagee with respect to the related
Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could be required, that taking such actions with respect to such
Mortgaged Property is reasonably likely to produce a greater
recovery on a net present value basis than not taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Master Servicer as a Servicing Advance and the cost of any remedial, corrective
or other further action contemplated by clause (i) and/or clause (ii) of the
preceding sentence shall be paid by the Master Servicer as a Servicing Advance,
unless it is a Nonrecoverable Servicing Advance (in which case it shall be an
expense of the Trust Fund and, in the case of a Serviced Whole Loan, shall be
withdrawn in accordance with the related Intercreditor Agreement by the Master
Servicer from the Certificate Account, including from the sub-account relating
to a related Serviced Companion Note (such withdrawal to be made from amounts on
deposit therein that are otherwise payable on or allocable to such Serviced
Note)); and if any such Environmental Assessment so warrants, the Special
Servicer shall (except with respect to any Companion Loan and any Environmental
Assessment ordered after the related Serviced Mortgage Loan has been paid in
full), at the expense of the Trust Fund, perform such additional environmental
testing as it deems necessary and prudent to determine whether the conditions
described in clauses (i) and (ii) of the preceding sentence have been satisfied.
With respect to Non-Specially Serviced Mortgage Loans (other than with respect
to the Non-Serviced Mortgage Loans), the Master Servicer and, with respect to
Specially Serviced Mortgage Loans, the Special Servicer (other than the
Non-Serviced Mortgage Loans) shall review and be familiar with the terms and
conditions relating to enforcing claims and shall monitor the dates by which any
claim or action must be taken (including delivering any notices to the insurer
and using reasonable efforts to perform any actions required under such policy)
under each environmental insurance policy in effect and obtained on behalf of
the mortgagee to receive the maximum proceeds available under such policy for
the benefit of the Certificateholders and the Trustee (as holder of the Class
A-MFL Regular Interest and the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 6 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized (with the consent of the Directing
Certificateholder) at such time as it deems appropriate to release such
Mortgaged Property from the lien of the related Mortgage, provided that, if such
Mortgage Loan has a then outstanding principal balance of greater than
$1,000,000, then prior to the release of the related Mortgaged Property from the
lien of the related Mortgage, (i) the Special Servicer shall have notified the
Rating Agencies, the Trustee, the Paying Agent, the Master Servicer and the
Directing Certificateholder in writing of its intention to so release such
Mortgaged Property and the bases for such intention, (ii) the Paying Agent shall
have notified the Certificateholders in writing of the Special Servicer's
intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Paying Agent's distributing such notice
(failure to respond by the end of such 30-day period being deemed consent), and
(iv) the Special Servicer shall have received written confirmation from each
Rating Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates or
class of Serviced Companion Loan Securities. To the extent any fee charged by
each Rating Agency in connection with rendering such written confirmation is not
paid by the related Mortgagor, such fee is to be an expense of the Trust;
provided that the Master Servicer or Special Servicer, as applicable, shall use
commercially reasonable efforts to collect such fee from the Mortgagor to the
extent permitted under the related Mortgage Loan documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder, each Rating Agency and the Master Servicer monthly regarding
any actions taken by the Special Servicer with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan or defaulted Companion Loan as to which the
environmental testing contemplated in subsection (c) above has revealed that
either of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of both such conditions, repurchase of the related Mortgage Loan by
the applicable Mortgage Loan Seller or release of the lien of the related
Mortgage on such Mortgaged Property. The Paying Agent shall forward, or cause to
be forwarded all such reports to each Rating Agency and the Certificateholders
upon request.
(f) The Special Servicer shall notify the Master Servicer of any
abandoned and/or foreclosed properties which require reporting to the Internal
Revenue Service and shall provide the Master Servicer with all information
regarding forgiveness of indebtedness and required to be reported with respect
to any Mortgage Loan or Companion Loan which is abandoned or foreclosed and the
Master Servicer shall report to the Internal Revenue Service and the related
Mortgagor, in the manner required by applicable law, such information and the
Master Servicer shall report, via Form 1099C (or any successor form), all
forgiveness of indebtedness to the extent such information has been provided to
the Master Servicer by the Special Servicer. Upon request, the Master Servicer
shall deliver a copy of any such report to the Trustee and the Paying Agent.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
(other than with respect to a Non-Serviced Mortgage Loan) and the basis thereof.
Each Final Recovery Determination shall be evidenced by an Officer's Certificate
promptly delivered to the Trustee, the Paying Agent, the Directing
Certificateholder and the Master Servicer and in no event later than the next
succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan (other than a Non-Serviced
Mortgage Loan), or the receipt by the Master Servicer or the Special Servicer,
as the case may be, of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer or Special Servicer,
as the case may be, will promptly notify the Trustee and request delivery of the
related Mortgage File. Any such notice and request shall be in the form of a
Request for Release signed by a Servicing Officer and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Certificate Account
pursuant to Section 3.04(a) or remitted to the Master Servicer to enable such
deposit, have been or will be so deposited. Within seven Business Days (or
within such shorter period as release can reasonably be accomplished if the
Master Servicer or the Special Servicer notifies the Trustee of an exigency) of
receipt of such notice and request, the Trustee shall release, or cause any
related Custodian to release, the related Mortgage File to the Master Servicer
or Special Servicer, as the case may be, provided, however, that in the case of
the payment in full of a Serviced Whole Loan, the Mortgage Loan File with
respect to the related Serviced Whole Loan shall not be released by the Trustee
(and the Master Servicer or Special Servicer shall not request such release)
unless such Mortgage Loan that is paid in full is the sole remaining portion of
such Serviced Whole Loan in the Trust Fund. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (other than a Non-Serviced Mortgage Loan)(and any related
Companion Loan), the Master Servicer or the Special Servicer shall deliver to
the Trustee a Request for Release signed by a Servicing Officer. Upon receipt of
the foregoing, the Trustee shall deliver or cause the related Custodian to
deliver, the Mortgage File or any document therein to the Master Servicer or the
Special Servicer (or a designee), as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or the
delivery to the Trustee of a certificate of a Servicing Officer of the Master
Servicer or the Special Servicer, as the case may be, stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee to the Master Servicer or
the Special Servicer (or a designee), as the case may be, with the original
being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
(d) If, from time to time, pursuant to the terms of the applicable
Non-Serviced Intercreditor Agreement and the applicable Non-Serviced Pooling
Agreement, and as appropriate for enforcing the terms of a Non-Serviced Mortgage
Loan, the applicable Non-Serviced Master Servicer requests delivery to it of the
original Mortgage Note for a Non-Serviced Mortgage Loan, then the Trustee shall
release or cause the release of such original Mortgage Note to such Non-Serviced
Master Servicer or its designee.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, the Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan and REO
Loan (including Specially Serviced Mortgage Loans). As to each Mortgage Loan,
Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at
the Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan, Companion Loan or REO Loan, as the case
may be, and in the same manner as interest is calculated on such Mortgage Loan,
Companion Loan or REO Loan, as the case may be, and, in connection with any
partial month interest payment, for the same period respecting which any related
interest payment due on such Mortgage Loan or Companion Loan or deemed to be due
on such REO Loan is computed. The Servicing Fee with respect to any Mortgage
Loan, Companion Loan or REO Loan shall cease to accrue if a Liquidation Event
occurs in respect thereof, except that if such asset is part of a Serviced Whole
Loan and the Serviced Whole Loan continues to be serviced and administered under
this Agreement notwithstanding such Liquidation Event, then the applicable
Servicing Fee shall continue to accrue and be payable as if such Liquidation
Event did not occur. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion
Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise
provided by Section 3.05(a). The Master Servicer shall be entitled to recover
unpaid Servicing Fees in respect of any Mortgage Loan, Companion Loan or REO
Loan out of that portion of related payments, Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan)
allocable as recoveries of interest, to the extent permitted by Section 3.05(a).
Except as set forth in the third paragraph of this Section 3.11(a) and Section
7.01(c), the right to receive the Servicing Fee may not be transferred in whole
or in part (except in connection with a transfer of all of the Master Servicer's
duties and obligations hereunder to a successor servicer in accordance with the
terms hereof).
The Master Servicer shall be entitled to retain, and shall not be
required to deposit in the Certificate Account pursuant to Section 3.04(a),
additional servicing compensation (other than with respect to a Non-Serviced
Mortgage Loan) in the form of (i) 100% of modification, waiver and consent fees
pursuant to Section 3.08(e), provided the consent of the Special Servicer is not
required to take such action, (ii) 100% of all defeasance fees and all
application fees received on Non-Specially Serviced Mortgage Loans (but in the
event that assumption fees are collected pursuant to (iii) below, 50% of all
application fees) and (iii) 50% of all assumption, extension, earnout, waiver
and consent fees pursuant to Section 3.08(a) and Section 3.08(b) on the
Non-Specially Serviced Mortgage Loans, to the extent that such fees are paid by
the Mortgagor and for which the Special Servicer's consent or approval is
required on the Non-Specially Serviced Mortgage Loans (other than with respect
to a Non-Serviced Mortgage Loan) and only to the extent that all amounts then
due and payable with respect to the related Mortgage Loan have been paid. In
addition, the Master Servicer shall be entitled to retain as additional
servicing compensation (other than with respect to a Non-Serviced Mortgage Loan)
any charges for processing Mortgagor requests, beneficiary statements or
demands, reasonable and customary consent fees, fees in connection with
defeasance, if any, and other customary charges, and amounts collected for
checks returned for insufficient funds, in each case only to the extent actually
paid by the related Mortgagor and shall not be required to deposit such amounts
in the Certificate Account or the Companion Distribution Account pursuant to
Section 3.04(a). Subject to Section 3.11(d), the Master Servicer shall also be
entitled to additional servicing compensation in the form of: (i) Penalty
Charges to the extent provided in Section 3.11(d), (ii) interest or other income
earned on deposits relating to the Trust Fund in the Certificate Account or the
Companion Distribution Account in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to such account
for the period from and including the prior Distribution Date to and including
the P&I Advance Date related to such Distribution Date), (iii) interest or other
income earned on deposits in the Servicing Account which are not required by
applicable law or the related Mortgage Loan to be paid to the Mortgagor and (iv)
the difference, if positive, between Prepayment Interest Excess and Prepayment
Shortfalls collected on the Mortgage Loans during the related Due Period to the
extent not required to be paid as Compensating Interest Payments. The Master
Servicer shall be required to pay out of its own funds all expenses incurred by
it in connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of its Sub-Servicers and
the premiums for any blanket Insurance Policy insuring against hazard losses
pursuant to Section 3.07), if and to the extent such expenses are not payable
directly out of the Certificate Account and the Master Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
Notwithstanding anything herein to the contrary, the Master Servicer
may at its option assign or pledge to any third party or retain for itself the
Transferable Servicing Interest; provided, however, that in the event of any
resignation or termination of such Master Servicer, all or any portion of the
Transferable Servicing Interest may be reduced by the Trustee to the extent
reasonably necessary (in the sole discretion of the Trustee) for the Trustee to
obtain a qualified successor Master Servicer that meets the requirements of
Section 6.04 and who requires market rate servicing compensation that accrues at
a per annum rate in excess of the Retained Fee Rate, and any such assignment of
the Transferable Servicing Interest shall, by its terms be expressly subject to
the terms of this Agreement and such reduction. The Master Servicer shall pay
the Transferable Servicing Interest to the holder of the Transferable Servicing
Interest at such time and to the extent the Master Servicer is entitled to
receive payment of its Servicing Fees hereunder, notwithstanding any resignation
or termination of the Master Servicer hereunder (subject to reduction pursuant
to the preceding sentence).
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan (other than a Non-Serviced
Mortgage Loan and any successor REO Loan). As to each Specially Serviced
Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from time to
time at the Special Servicing Fee Rate and shall be computed on the basis of the
Stated Principal Balance of such Specially Serviced Mortgage Loan or REO Loan,
as the case may be, and in the same manner as interest is calculated on the
Specially Serviced Mortgage Loans or REO Loans, as the case may be, and, in
connection with any partial month interest payment, for the same period
respecting which any related interest payment due on such Specially Serviced
Mortgage Loan or deemed to be due on such REO Loan is computed. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, in
accordance with the provisions of Section 3.05(a). The right to receive the
Special Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer's responsibilities
and obligations under this Agreement. The Special Servicer shall not be entitled
to any Special Servicing Fees with respect to a Non-Serviced Mortgage Loan.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and all defeasance fees, in each case, received on any
Specially Serviced Mortgage Loans (other than a Non-Serviced Mortgage Loan and
any successor REO Loan) to the extent such fees are paid by the Mortgagor, (ii)
50% of all application fees received on Non-Specially Serviced Mortgage Loans
(but only to the extent that assumption fees are collected pursuant to (iii)
below) and (iii) 50% of all assumption, extension, material modification,
waiver, consent and earnout fees pursuant to Section 3.08(a) and 3.08(b) or 3.20
received with respect to all Non-Specially Serviced Mortgage Loans and for which
the Special Servicer's consent or approval is required, shall be promptly paid
to the Special Servicer by the Master Servicer to the extent such fees are paid
by the Mortgagor and shall not be required to be deposited in the applicable
Certificate Account pursuant to Section 3.04(a). The Special Servicer shall also
be entitled to additional servicing compensation in the form of a Workout Fee
with respect to each Corrected Mortgage Loan at the Workout Fee Rate on such
Mortgage Loan for so long as it remains a Corrected Mortgage Loan. The Workout
Fee with respect to any Corrected Mortgage Loan will cease to be payable if such
loan again becomes a Specially Serviced Mortgage Loan; provided that a new
Workout Fee will become payable if and when such Specially Serviced Mortgage
Loan again becomes a Corrected Mortgage Loan. The Special Servicer shall not be
entitled to any Special Servicing Fees with respect to a Non-Serviced Mortgage
Loan. If the Special Servicer is terminated (other than for cause) or resigns,
it shall retain the right to receive any and all Workout Fees payable in respect
of Mortgage Loans or Companion Loans that became Corrected Mortgage Loans prior
to the time of that termination or resignation except the Workout Fees will no
longer be payable if the Mortgage Loan subsequently becomes a Specially Serviced
Mortgage Loan. If the Special Servicer resigns or is terminated (other than for
cause), it will receive any Workout Fees payable on Specially Serviced Mortgage
Loans for which the resigning or terminated Special Servicer had cured the event
of default through a modification, restructuring or workout negotiated by the
Special Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The successor Special Servicer will not be entitled to any portion of
such Workout Fees. The Special Servicer will not be entitled to receive any
Workout Fees after termination for cause. A Liquidation Fee will be payable with
respect to each Specially Serviced Mortgage Loan (other than a Non-Serviced
Mortgage Loan) or REO Property as to which the Special Servicer receives any
Liquidation Proceeds or Insurance and Condemnation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee (such Liquidation Fee
to be paid out of such Liquidation Proceeds, Insurance and Condemnation
Proceeds). If, however, Liquidation Proceeds or Insurance and Condemnation
Proceeds are received with respect to any Corrected Mortgage Loan and the
Special Servicer is properly entitled to a Workout Fee, such Workout Fee will be
payable based on and out of the portion of such Liquidation Proceeds and
Insurance and Condemnation Proceeds that constitute principal and/or interest on
such Mortgage Loan. Notwithstanding anything herein to the contrary, the Special
Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee,
but not both, with respect to proceeds on any Mortgage Loan. Notwithstanding the
foregoing, with respect to any Companion Loan, the Liquidation Fee, Workout Fee
and Special Servicing Fees, if any, will be computed as provided in the related
Intercreditor Agreement or to the extent such Intercreditor Agreement is silent,
as provided herein as though such Companion Loan were a Mortgage Loan. Subject
to Section 3.11(d), the Special Servicer will also be entitled to additional
fees in the form of Penalty Charges to the extent provided in subsection (d).
The Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against hazard
losses pursuant to Section 3.07), if and to the extent such expenses are not
expressly payable directly out of the Certificate Account or the REO Account,
and the Special Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
(other than a Non-Serviced Mortgage Loan) since the prior Distribution Date
shall be applied (in such order) to reimburse (i) the Master Servicer or the
Trustee for interest on Advances on such Mortgage Loan (and, in connection with
a Non-Serviced Mortgage Loan, the applicable Non-Serviced Master Servicer, the
applicable Non-Serviced Special Servicer, the applicable Non-Serviced Paying
Agent or the applicable Non-Serviced Trustee for interest on the Servicing
Advances made by any such party with respect to a Non-Serviced Whole Loan
pursuant to the applicable Non-Serviced Pooling Agreement, to the extent so
provided in the applicable Non-Serviced Intercreditor Agreement) due on such
Distribution Date, (ii) the Trust Fund for all interest on Advances previously
paid to the Master Servicer or the Trustee pursuant to Section 3.05(a)(vi)
hereof (and, in connection with a Non-Serviced Mortgage Loan, the applicable
Non-Serviced Trust for all interest on Servicing Advances reimbursed by such
Non-Serviced Trust to any party under the applicable Non-Serviced Pooling
Agreement, which resulted in an additional trust fund expense for the
Non-Serviced Trust, to the extent so provided in the applicable Non-Serviced
Intercreditor Agreement) with respect to such Mortgage Loan and (iii) the Trust
Fund for costs of all additional Trust Fund expenses (other than Special
Servicing Fees, Workout Fees and Liquidation Fees), including without
limitation, inspections by the Special Servicer and all unpaid Advances incurred
since the Closing Date with respect to such Mortgage Loan; Penalty Charges
(other than with respect to a Non-Serviced Mortgage Loan, which shall be payable
as additional servicing compensation under the Non-Serviced Pooling Agreement)
remaining thereafter shall be distributed to the Master Servicer, if and to the
extent collected while the Mortgage Loan was a Non-Specially Serviced Mortgage
Loan and to the Special Servicer if and to the extent collected on such Mortgage
Loan during the period such Mortgage Loan was a Specially Serviced Mortgage
Loan. Notwithstanding the foregoing, Penalty Charges with respect to any
Companion Loan will be allocated pursuant to the applicable Intercreditor
Agreement after payment of all related Advances and interest thereon.
Section 3.12 Inspections; Collection of Financial Statements. (a)
The Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
(other than a Non-Serviced Mortgaged Property) securing a Mortgage Note that it
is responsible for servicing hereunder with a stated Principal Balance of (i)
$2,000,000 or more at least once every 12 months and (ii) less than $2,000,000
at least once every 24 months, in each case commencing in the calendar year 2008
(and each Mortgaged Property shall be inspected on or prior to November 30,
2009); provided, however, that if a physical inspection has been performed by
the Special Servicer in the previous 12 months and the Master Servicer has no
knowledge of a material change in the Mortgaged Property since such physical
inspection, the Master Servicer will not be required to perform or cause to be
performed, such physical inspection; provided, further, that if any scheduled
payment becomes more than 60 days delinquent on the related Mortgage Loan, the
Special Servicer shall inspect or cause to be inspected the related Mortgaged
Property as soon as practicable after such Mortgage Loan becomes a Specially
Serviced Mortgage Loan and annually thereafter for so long as such Mortgage Loan
remains a Specially Serviced Mortgage Loan. The cost of such inspection by the
Special Servicer shall be an expense of the Trust Fund, and to the extent not
paid by the related Mortgagor reimbursed first from Penalty Charges (but with
respect to a Serviced Whole Loan, only from amounts available for such purpose
under the related Intercreditor Agreement) actually received from the related
Mortgagor and then from the Certificate Account pursuant to Section 3.05(a)(ii).
The Special Servicer or the Master Servicer, as applicable, shall prepare or
cause to be prepared a written report of each such inspection detailing the
condition of and any damage to the Mortgaged Property to the extent evident from
the inspection and specifying the existence of (i) any vacancy in the Mortgaged
Property that the preparer of such report deems material, (ii) any sale,
transfer or abandonment of the Mortgaged Property of which the preparer of such
report has knowledge or that is evident from the inspection, (iii) any adverse
change in the condition of the Mortgaged Property of which the preparer of such
report has knowledge or that is evident from the inspection, and that the
preparer of such report deems material, (iv) any visible material waste
committed on the Mortgaged Property of which the preparer of such report has
knowledge or that is evident from the inspection and (v) photographs of each
inspected Mortgaged Property. The Special Servicer and the Master Servicer shall
deliver a copy of each such report prepared by the Special Servicer and the
Master Servicer, respectively, to the other, to the Directing Certificateholder
and, upon request, to the Trustee, the Paying Agent and the Rating Agencies
within five (5) Business Days after request (or if such request is received
before such report is completed, within five (5) Business Days after completion
of such report). The Paying Agent shall deliver a copy of each such report to
the Controlling Class Certificateholder upon request and to each Holder of a
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q, Class T and Class NR Certificate, upon request (which such
request may state that such items be delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loans other than the Non-Serviced Mortgage Loans, shall make
reasonable efforts to collect promptly from each Mortgagor annual operating
statements and rent rolls of the related Mortgaged Property, financial
statements of such Mortgagor and any other reports required to be delivered
under the terms of the Mortgage Loans (and each Companion Loan), if delivery of
such items is required pursuant to the terms of the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan (other than the Non-Serviced Mortgage Loans), and the Master
Servicer, in the case of any Non-Specially Serviced Mortgage Loan (other than
the Non-Serviced Mortgage Loans) shall make reasonable efforts to collect
promptly from each related Mortgagor quarterly and annual operating statements,
budgets and rent rolls of the related Mortgaged Property, and the quarterly and
annual financial statements of such Mortgagor, whether or not delivery of such
items is required pursuant to the terms of the related Mortgage. The Master
Servicer and the Special Servicer shall not be required to request such
statements more than once if the related Mortgagor is not required to deliver
such statements pursuant to the terms of the Mortgage Loan documents. In
addition, the Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. The Special Servicer shall deliver all such items to the Master
Servicer within five (5) days of receipt and the Master Servicer and the Special
Servicer each shall deliver copies of all the foregoing items so collected
thereby to the Trustee, the Paying Agent, the Directing Certificateholder and,
upon request, to the Depositor and each other, in each case within 60 days of
its receipt thereof, but in no event, in the case of annual statements, later
than June 30 of each year commencing June 30, 2008. The Paying Agent shall, upon
request, deliver copies (in hard copy, electronic format or make available on
its internet website) of the foregoing items to the Underwriters, the Trustee,
the Rating Agencies, the Controlling Class Certificateholders, the Mortgage Loan
Sellers or, to the extent the Certificate Registrar has confirmed the Ownership
Interest in Certificates held thereby, any Certificate Owner, a copy (or image
in suitable electronic media) of each such report prepared by the Master
Servicer or the Special Servicer.
Within 45 days after receipt by the Master Servicer, with respect to
Non-Specially Serviced Mortgage Loans it is responsible for servicing hereunder,
or the Special Servicer with respect to Specially Serviced Mortgage Loans of any
annual operating statements or rent rolls with respect to any Mortgaged Property
or REO Property, or if such date would be after June 30 of any year, then within
30 days after receipt, such Master Servicer shall, based upon such operating
statements or rent rolls received, prepare (or, if previously prepared, update)
the analysis of operations and the CMSA NOI Adjustment Worksheet and the CMSA
Operating Statement Analysis Report. Upon the occurrence and continuation of a
Servicing Transfer Event, the Master Servicer shall provide the Special Servicer
with all prior CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets for the related Mortgage Loan (including underwritten figures), and
the Special Servicer's obligations hereunder shall be subject to its having
received all such reports. The Master Servicer and Special Servicer shall
forward to the other and the Directing Certificateholder electronically monthly
all operating statements and rent rolls received from any Mortgagor from the
prior month. All CMSA Operating Statement Analysis Reports and CMSA NOI
Adjustment Worksheets shall be maintained by the Master Servicer with respect to
each Mortgaged Property (other than a Non-Serviced Mortgaged Property) and REO
Property, and the Master Servicer shall forward copies (in electronic format or
make available on its internet website) thereof and the related operating
statements or rent rolls (in each case, promptly following the initial
preparation and each material revision thereof) to the Paying Agent (in
electronic format only), the Directing Certificateholder (and with respect to
any Companion Loan, the related Companion Holder) and the Special Servicer. The
Paying Agent shall, upon request and to the extent such items have been
delivered to the Paying Agent by the Master Servicer, deliver to the
Underwriters, the Rating Agencies, the Mortgage Loan Sellers, any
Certificateholder or, to the extent the Certificate Registrar has confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of such CMSA Operating Statement Analysis Report (or update thereof) and
CMSA NOI Adjustment Worksheet (or update thereof), upon written request, and the
related operating statement or rent rolls. The Master Servicer shall maintain a
CMSA Operating Statement Analysis Report and a CMSA NOI Adjustment Worksheet
with respect to each Mortgaged Property (other than a Non-Serviced Mortgaged
Property) and REO Property (other than a Non-Serviced Mortgaged Property).
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicer the CMSA Special Servicer Loan File with
respect to the Specially Serviced Mortgage Loans and any REO Properties (other
than a Non-Serviced Mortgaged Property), providing the information required of
the Special Servicer in an electronic format, reasonably acceptable to the
Master Servicer as of the Business Day preceding such Determination Date, which
CMSA Special Servicer Loan File shall include data, to enable the Master
Servicer to produce the following CMSA Supplemental Reports: (i) a CMSA
Delinquent Loan Status Report, (ii) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iii) a CMSA REO Status Report, (iv) a CMSA
Comparative Financial Status Report and (v) a CMSA NOI Adjustment Worksheet and
a CMSA Operating Statement Analysis Report, in each case with the supporting
financial statements submitted by the Mortgagor.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date beginning December 2007, the Master Servicer shall prepare (if and to the
extent necessary) and deliver or cause to be delivered in electronic format to
the Paying Agent the following reports and data files: (i) to the extent the
Master Servicer has received the CMSA Special Servicer Loan File at the time
required, the most recent CMSA Delinquent Loan Status Report, CMSA Historical
Loan Modification and Corrected Mortgage Loan Report and the CMSA REO Status
Report, (ii) CMSA Loan Setup File (with respect to the first Distribution Date),
(iii) the most recent CMSA Property File, and CMSA Comparative Financial Status
Report (in each case incorporating the data required to be included in the CMSA
Special Servicer Loan File pursuant to Section 3.12(d) by the Special Servicer
and Master Servicer), (iv) a CMSA Servicer Watch List with information that is
current as of such Determination Date, (v) CMSA Financial File, (vi) CMSA Loan
Level Reserve LOC Report, (vii) the Realized Loss Report, (viii) the CMSA
Advance Recovery Report, and (ix) with respect to Mortgage Loans that have a
Companion Loan, the CMSA Total Loan Report. Not later than 2:00 p.m. (New York
City time) two (2) Business Days prior to the Distribution Date, the Master
Servicer shall deliver or cause to be delivered to the Paying Agent via
electronic format the CMSA Loan Periodic Update File. In no event shall any
report described in this subsection be required to reflect information that has
not been collected by or delivered to the Master Servicer, or any payments or
collections not received by the Master Servicer, as of the Business Day prior to
the Business Day on which the report is due.
(f) The Special Servicer shall deliver to the Master Servicer the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and the Master Servicer shall deliver to the Paying Agent the reports
and data files set forth in Section 3.12(e). The Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The Paying
Agent may, absent manifest error, conclusively rely on the reports and/or data
to be provided by the Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by the Master Servicer to the Paying
Agent pursuant to Section 3.12(e), to the extent that such information or
reports are, in turn, based on information or reports to be provided by the
Special Servicer pursuant to Section 3.12(c) or Section 3.12(d) and to the
extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(c) or Section 3.12(d), the Master Servicer
shall have no obligation to provide such information or reports to the Paying
Agent until it has received the requisite information or reports from the
Special Servicer, and the Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(e) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer, as the case may be, would violate any applicable law or any
provision of a Mortgage Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Mortgaged Properties. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law and
the Servicing Standards. The Master Servicer or the Special Servicer may affix
to any information provided by it any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party hereto).
(h) Unless otherwise specifically stated herein, if the Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, the Master Servicer or the
Special Servicer, as the case may be, may satisfy such obligation by (x)
physically delivering a paper copy of such statement, report or information, (y)
delivering such statement, report or information in a commonly used electronic
format or (z) except with respect to information to be provided to the Paying
Agent and the Directing Certificateholder or any Companion Holder, making such
statement, report or information available on the Master Servicer's or the
Special Servicer's internet website, unless this Agreement expressly specifies a
particular method of delivery.
Notwithstanding anything to the contrary in the foregoing, the
Master Servicer and the Special Servicer shall deliver any required statements,
reports or other information to the Trustee in an electronic format mutually
agreeable to the Trustee and the Master Servicer or the Special Servicer, as the
case may be. The Master Servicer or the Special Servicer may physically deliver
a paper copy of any such statement, report or information as a temporary measure
due to system problems, however, copies in electronic format shall follow upon
the correction of such system problems.
Section 3.13 [Reserved].
Section 3.14 [Reserved].
Section 3.15 Access to Certain Information. Each of the Master
Servicer and the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Paying Agent, the
Depositor, each Mortgage Loan Seller, each Rating Agency, the Directing
Certificateholder and any Companion Holder, and to the Master Servicer, or to
the Special Servicer, as applicable, and to the OTS, the FDIC, the Federal
Reserve Board and the supervisory agents and examiners of such boards and such
corporations, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, and to each
Holder of a Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class Q, Class T or Class NR Certificate, and to each
Companion Holder (solely with respect to the related Serviced Whole Loan),
access to any documentation or information regarding the Mortgage Loans and
related Companion Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law. At the election of the Master
Servicer or the Special Servicer, such access may be afforded to such Person
identified above by the delivery of copies of information as requested by such
Person and the Master Servicer or the Special Servicer shall be permitted to
require payment (other than from the Directing Certificateholder and the Trustee
and the Paying Agent on its own behalf or on behalf of the Certificateholders)
of a sum sufficient to cover the reasonable out-of-pocket costs incurred by it
in making such copies. Such access shall (except as described in the preceding
sentence) be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Master Servicer
or the Special Servicer, as the case may be, designated by it; provided,
however, that Certificateholders and Certificate Owners shall be required to pay
their own photocopying costs and execute a reasonable and customary
confidentiality agreement with respect to such information. The failure of the
Master Servicer or the Special Servicer to provide access as provided in this
Section 3.15 as a result of a confidentiality obligation shall not constitute a
breach of this Section 3.15; provided that nothing in this paragraph shall
provide a basis for not providing to the Directing Certificateholder any
information specifically required to be delivered to it under the terms of this
Agreement. The Master Servicer and the Special Servicer may each deny any of the
foregoing persons access to confidential information or any intellectual
property which the Master Servicer or the Special Servicer is restricted by
license or contract from disclosing. In connection with providing access to
information pursuant to this Section 3.15 to parties other than the Trustee, the
Paying Agent or the Directing Certificateholder, the Master Servicer and the
Special Servicer may each (i) affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto); (ii) affix to any information
provided by it a reasonable statement regarding securities law restrictions on
such information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Mortgage Loan if the
disclosure of such items is prohibited by applicable law or the provisions of
any related Mortgage Loan documents or would constitute a waiver of the
attorney-client privilege. Notwithstanding any provision of this Agreement to
the contrary, the failure of the Master Servicer or the Special Servicer to
disclose any information otherwise required to be disclosed by it pursuant to
this Agreement shall not constitute a breach of this Agreement to the extent
that the Master Servicer or the Special Servicer, as the case may be,
determines, in its reasonable good faith judgment consistent with the applicable
Servicing Standards, that such disclosure would violate applicable law or any
provision of a Mortgage Loan document or Companion Loan document prohibiting
disclosure of information with respect to the Mortgage Loans or Companion Loans
or the Mortgaged Properties, constitute a waiver of the attorney-client
privilege on behalf of the Trust or the Trust Fund or otherwise materially harm
the Trust or the Trust Fund.
Section 3.16 Title to REO Property; REO Account. (a) If title to any
REO Property is acquired, the deed or certificate of sale shall be issued to the
Trustee or a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. REO Property with respect to a
Non-Serviced Mortgage Loan is excluded for all purposes of this Section 3.16.
The Special Servicer, on behalf of the Trust Fund and, if applicable, the
related Serviced Companion Noteholders, shall sell any REO Property prior to the
close of the third calendar year following the year in which the Trust Fund
acquires ownership of such REO Property, within the meaning of Treasury
Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the
Code, unless the Special Servicer either (i) is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee, the Paying Agent and the Master Servicer an
Opinion of Counsel, addressed to the Trustee, the Paying Agent and the Master
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the close of the third calendar year following the year in which
such acquisition occurred will not cause the imposition of a tax on the
Upper-Tier REMIC or the Lower-Tier REMIC or cause the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding. If the Special
Servicer is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel contemplated by
clause (ii) of the immediately preceding sentence, the Special Servicer shall
sell such REO Property within such longer period as is permitted by such REO
Extension or such Opinion of Counsel, as the case may be. Any expense incurred
by the Special Servicer in connection with its being granted the REO Extension
contemplated by clause (i) of the second preceding sentence or its obtaining the
Opinion of Counsel contemplated by clause (ii) of the second preceding sentence,
shall be an expense of the Trust Fund payable out of the Certificate Account
pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Class A-MFL Regular Interest and the
Uncertificated Lower-Tier Interests), for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within 1 Business Day after receipt, all REO Revenues, Insurance
and Condemnation Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the Master Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date (or with respect to a Serviced Companion Note, on the
Business Day preceding each Serviced Whole Loan Remittance Date), the Special
Servicer shall withdraw from the REO Account and remit to the Master Servicer,
which shall deposit into the Certificate Account (or such subaccount of the
Certificate Account for each Companion Loan, as applicable), the aggregate of
all amounts received in respect of each REO Property during the most recently
ended Due Period, net of (i) any withdrawals made out of such amounts pursuant
to the preceding sentence and (ii) Net Investment Earnings on amounts on deposit
in the REO Account; provided, however, that the Special Servicer may retain in
such REO Account, in accordance with the Servicing Standards, such portion of
such balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, on or prior to each
Determination Date (or with respect to a Serviced Companion Note, on the
Business Day preceding each Serviced Whole Loan Remittance Date), the Special
Servicer shall provide the Master Servicer with a written accounting of amounts
remitted to the Master Servicer for deposit in the Certificate Account, as
applicable, on such date. The Master Servicer shall apply all such amounts as
instructed by the Special Servicer on the Determination Date (or with respect to
a Serviced Companion Note, on each Serviced Whole Loan Remittance Date) for the
related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (a) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Class A-MFL Regular Interest and the Uncertificated Lower-Tier Interests) solely
for the purpose of its timely disposition and sale in a manner that does not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust
Fund or any Serviced Companion Noteholder of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an
Adverse REMIC Event. Subject to the foregoing, however, the Special Servicer
shall have full power and authority to do any and all things in connection
therewith as are in the best interests of and for the benefit of the
Certificateholders (and, in the case of each Serviced Whole Loan, the related
Companion Holder(s)) and the Trustee (as holder of the Class A-MFL Regular
Interest and the Uncertificated Lower-Tier Interests) all as a collective whole
(as determined by the Special Servicer in its reasonable judgment in accordance
with the Servicing Standards). REO Property with respect to a Non-Serviced
Mortgage Loan is excluded for all purposes of this Section 3.17. Subject to this
Section 3.17, the Special Servicer may allow the Trust Fund or any commercial
mortgage securitization that holds any Serviced Companion Loan to earn "net
income from foreclosure property" within the meaning of Section 860G(d) of the
Code if it determines that earning such income is in the best interests of
Certificateholders and, if applicable, any related Companion Holder(s) on a net
after-tax basis as compared with net leasing such REO Property or operating such
REO Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than 1 Business Day following receipt of such funds) in the applicable REO
Account all revenues received by it with respect to each REO Property and the
related REO Loan, and shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease
such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer (subject to
receiving notice from the Special Servicer in accordance with the procedures set
forth elsewhere in this Agreement) shall advance from its own funds such amount
as is necessary for such purposes unless (as evidenced by an Officer's
Certificate delivered to the Trustee, the Depositor, the Paying Agent and the
Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any
New Lease with respect to any REO Property, if the New Lease by its
terms will give rise to any income that does not constitute Rents
from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on any REO
Property, other than the completion of a building or other
improvement thereon, and then only if more than 10% of the
construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all
within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than
an Independent Contractor, to Directly Operate, any REO Property on
any date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held for the benefit of the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall be
an expense of the Trust Fund) shall be reasonable and customary in
light of the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be
administered to require, that the Independent Contractor (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation,
those listed in subsection (a) hereof, and (B) remit all related
revenues collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations hereunder with respect
to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated to manage and
supervise such Independent Contractor in accordance with the
Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Master Servicer a statement prepared by the
Special Servicer setting forth the amount of net income or net loss, as
determined for federal income tax purposes, resulting from the operation and
management of a trade or business on, the furnishing or rendering of a
non-customary service to the tenants of, or the receipt of any other amount not
constituting Rents from Real Property in respect of, any REO Property in
accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a Specially
Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan, the Special
Servicer shall order an Appraisal (but shall not be required to be received) and
within thirty (30) days of receipt of the Appraisal shall determine the fair
value of such Defaulted Mortgage Loan in accordance with the Servicing
Standards; provided, however, that such determination shall be made without
taking into account any effect the restrictions on the sale of such Mortgage
Loan contained herein may have on the value of such Defaulted Mortgage Loan;
provided, further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer may, from time to time, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with a review of such
circumstances and new information in accordance with the Servicing Standards,
conducted not less often than every 90 days. The Special Servicer shall notify
the Trustee, the Master Servicer, the Paying Agent and the Certificateholder
that owns the largest aggregate Certificate Balance of the Controlling Class
(the "Controlling Class Option Holder") and the Serviced Companion Noteholders
(solely as it relates to the Serviced Whole Loan) promptly upon its making a
fair value determination and any subsequent adjustment thereto. The Special
Servicer shall also deliver to the Master Servicer, the Rating Agencies and the
Controlling Class Option Holder and the Serviced Companion Noteholders (solely
as it relates to the Serviced Whole Loan) (to the extent such parties have not
already received), the most recent Appraisal of the related Mortgaged Property
then in the Special Servicer's possession, together with such other third-party
reports and other information then in the Special Servicer's possession that the
Special Servicer reasonably believes to be relevant to the fair value
determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). If the Special Servicer will not
be determining whether the Option Price represents fair value of the Defaulted
Mortgage Loan, pursuant to the penultimate paragraph of Section 3.18(a)(iv), the
Special Servicer shall also deliver the Determination Information to the
Trustee.
In determining the fair value of any Defaulted Mortgage Loan,
the Special Servicer shall take into account, among other factors,
the period and amount of the delinquency on such Mortgage Loan, the
occupancy level and physical condition of the related Mortgaged
Property, the state of the local economy in the area where the
Mortgaged Property is located, and the time and expense associated
with a purchaser's foreclosing on the related Mortgaged Property. In
addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or
otherwise contained in the Mortgage File; provided that the Special
Servicer shall take account of any change in circumstances regarding
the related Mortgaged Property known to the Special Servicer that
has occurred subsequent to, and that would, in the Special
Servicer's reasonable judgment, materially affect the value of the
related Mortgaged Property reflected in, the most recent related
Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally
available sources, as well as information obtained from vendors
providing real estate services to the Special Servicer, concerning
the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively
rely on the opinion and reports of Independent third parties in
making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e),
(f) and (g) of this Section 3.18, at the time a Mortgage Loan
becomes a Defaulted Mortgage Loan, the Special Servicer and
Controlling Class Option Holder (each, together with their
assignees, an "Option Holder") will have an assignable option (the
"Purchase Option") to purchase such Defaulted Mortgage Loan from the
Trust Fund at a price (the "Option Price") equal to (A) if the
Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at
the Mortgage Rate, (2) any related Yield Maintenance Charge or
prepayment premium then payable (except if the Purchase Option is
exercised by the Controlling Class Option Holder), (3) all related
Advances for which the Trust Fund or the Master Servicer has not
been reimbursed, together with all accrued and unpaid interest
thereon at the Reimbursement Rate to the extent not included in (1)
above, and (4) all accrued Special Servicing Fees and additional
Trust Fund expenses allocable to such Defaulted Mortgage Loan
whether recovered or unrecovered from the related Mortgagor or (B)
if the Special Servicer has determined the fair value of such
Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held
by the Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise
convey its Purchase Option with respect to any Defaulted Mortgage
Loan to any party at any time after the related Mortgage Loan
becomes a Defaulted Mortgage Loan. The transferor of any Purchase
Option shall notify the Trustee, the Paying Agent and the Master
Servicer of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and
appropriate contact person(s) and shall be acknowledged in writing
by the transferee.
Each Option Holder's Purchase Option with respect to any
Defaulted Mortgage Loan, if not exercised, will automatically
terminate (A) once the related Defaulted Mortgage Loan is no longer
a Defaulted Mortgage Loan; provided, however, that if such Mortgage
Loan subsequently becomes a Defaulted Mortgage Loan, the related
Purchase Option shall again be exercisable, (B) upon the
acquisition, by or on behalf of the Trust Fund, of title to the
related Mortgaged Property through foreclosure or deed in lieu of
foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a
workout or (D) subject to the Master Servicer's determination set
forth in clause (iv) below, upon another Option Holder's exercise of
its Purchase Option with respect to the related Mortgage Loan
becoming effective pursuant to clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer
indicating that a Mortgage Loan has become a Defaulted Mortgage
Loan, and after the expiration of the Controlling Class
Certificateholder's Option Period, each Option Holder (whether the
original grantee of such option or any subsequent transferee) may
exercise its Purchase Option by providing the Master Servicer, the
Paying Agent and the Trustee written notice thereof (the "Purchase
Option Notice"), in the form of Exhibit J, which notice shall
identify the Person that, on its own or through an Affiliate, will
acquire the related Mortgage Loan upon closing and shall specify a
cash exercise price at least equal to the Option Price. The Purchase
Option Notice shall be delivered in the manner specified in Section
12.05. Immediately upon receipt of such Purchase Option Notice, the
Special Servicer shall notify the remaining Option Holders that a
Purchase Option has been exercised. Within ten (10) days thereafter,
each remaining Option Holder may submit to the Special Servicer a
Purchase Option Notice for the related Defaulted Mortgage Loan. Upon
the expiration of such ten (10) day period, or such sooner time as
all remaining Option Holders have submitted Purchase Option Notices,
the Special Servicer shall notify the Option Holder whose Purchase
Option Notice included the highest exercise price that the exercise
of its Purchase Option is effective. The Special Servicer shall also
notify the Trustee of such effective exercise. In the event that
more than one Option Holder exercises its Purchase Option at the
same price, the Purchase Option Notice first received by the Special
Servicer shall be effective. The exercise of any Purchase Option
pursuant to this clause (iii) shall be irrevocable; provided that
the assignor of the Purchase Option shall have no liability to the
Trust or any other party hereto for the failure of its third party
assignee to close the sale of the Defaulted Mortgage Loan after its
exercise of the option, and upon such failure, the Purchase Option
shall revert to the Option Holder as provided herein as if the
Purchase Option had not been exercised, and the Special Servicer
shall pursue against such assignee whatever remedies it may have
against the assignee.
(iv) If the Special Servicer or any Controlling Class Option
Holder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related
Mortgage Loan, and the Option Price is based upon the Special
Servicer's fair value determination, the Master Servicer shall
determine as soon as reasonably practicable (and, in any event,
within thirty (30) days) after the Master Servicer has received the
written notice and the Determination Information to be provided to
the Master Servicer by the Special Servicer under Section
3.18(a)(i), whether the Option Price represents fair value for the
Defaulted Mortgage Loan; provided that, if the Special Servicer is
then in the process of obtaining a new Appraisal with respect to the
related Mortgaged Property, then the Master Servicer shall make its
fair value determination with respect to such Mortgage Loan as soon
as reasonably practicable (but in any event within thirty (30) days)
after the Master Servicer's receipt of such new Appraisal. Such fair
value determination shall be made in accordance with Servicing
Standards. In determining the fair value of any Defaulted Mortgage
Loan, the Master Servicer shall take into account, among other
factors, the period and amount of the delinquency on such Mortgage
Loan, the occupancy level and physical condition of the related
Mortgaged Property, the state of the local economy in the area where
the Mortgaged Property is located, and the time and expense
associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Master Servicer shall refer to the
Determination Information and all other relevant information
delivered to it by the Special Servicer or otherwise contained in
the Mortgage File; provided that the Master Servicer shall take
account of any change in circumstances regarding the related
Mortgaged Property known to the Master Servicer that has occurred
subsequent to, and that would, in the Master Servicer's reasonable
judgment, materially affect the value of the related Mortgaged
Property reflected in, such appraisal. Furthermore, the Master
Servicer shall consider all available objective third-party
information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to
the Master Servicer, concerning the market for distressed real
estate loans and the real estate market for the subject property
type in the area where the related Mortgaged Property is located.
The Master Servicer may conclusively rely on the opinion and reports
of Independent third parties in making such determination. The
Master Servicer shall be entitled to receive out of the Certificate
Account as additional compensation a $1,000 fee plus reasonable
out-of-pocket costs and expenses for each determination made in
accordance with this clause (iv), provided, however, with respect to
any Mortgage Loan, such $1,000 fee shall be collectible once. The
reasonable cost of all third party consultants and related reports
(in the event that such inspection report is pursuant to this
Section 3.18 and not an annual inspection pursuant to Section 3.12),
including but not limited to appraisals, inspection reports and
broker opinions of value, reasonably incurred by the Special
Servicer or the Master Servicer pursuant to this Section 3.18(a)(iv)
shall constitute, and be reimbursable as, Servicing Advances;
provided that the Special Servicer or the Master Servicer may rely
on the most current Appraisal and property inspection report
obtained for the related Mortgaged Property pursuant to Section
3.12. The other parties to this Agreement shall cooperate with all
reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option
Holder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related
Mortgage Loan, and the Option Price is based upon the Special
Servicer's fair value determination, and the Master Servicer and the
Special Servicer are Affiliates, the Trustee, subject to the
Directing Certificateholder's reasonable prior written consent,
which consent shall not be unreasonably withheld, shall designate an
Independent third party, independent of the Directing
Certificateholder, to determine whether the Option Price represents
fair value for the Defaulted Mortgage Loan, in the manner and within
the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third
party to make such determination, the Trustee will not assume any
responsibility for such third party's determination which
determination the Trustee shall be entitled to conclusively rely
upon. The Master Servicer, at the direction of the Trustee, may pay
such third party a fee of up to $1,000 out of the Certificate
Account. The reasonable costs of such Independent third party
appraisals, all inspection reports and broker opinions of value,
reasonably incurred by the Trustee or any such third party pursuant
to this paragraph shall be advanced by the Master Servicer and shall
constitute, and be reimbursable as, Servicing Advances. In
connection with the Trustee's designating an Independent third
party, the Special Servicer shall deliver to the Trustee for such
Independent third party's use the Determination Information.
In the event the Master Servicer or any designated third
party, as applicable, determines that the Option Price is less than
the fair value of the Defaulted Mortgage Loan, such party shall
provide its determination, together with all information and reports
it relied upon in making such determination, to the Special
Servicer, who may then adjust its fair value determination and,
consequently, the Option Price, pursuant to Section 3.18(a)(i). The
Special Servicer shall promptly provide written notice of any
adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to clause (iii) above.
Upon receipt of such notice, such Option Holder shall have three (3)
Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price
as adjusted, in which case such Option Holder shall not be obligated
to close the purchase of the Defaulted Mortgage Loan. Upon notice
from such Option Holder, or the Special Servicer, that such Option
Holder rejects the Option Price as adjusted, the Master Servicer and
the Trustee shall provide the notices described in the second
paragraph of clause (v) below and thereafter any Option Holder may
exercise its purchase option in accordance with Section 3.18(a), at
the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared
effective pursuant to clause (iii) above shall be required to pay
the purchase price specified in its Purchase Option Notice to the
Master Servicer within ten (10) Business Days of its receipt of the
Special Servicer's (or the Master Servicer's, if the Option Holder
is the Special Servicer) notice confirming that the exercise of its
Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Special Servicer or Master Servicer, as
applicable, specifying the date for closing the purchase of the
related Defaulted Mortgage Loan, and the purchase price to be paid
therefor, the Trustee shall deliver at such closing for release to
or at the direction of such Option Holder, the related Mortgage
File, and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be provided to
it by such Option Holder and are reasonably necessary to vest in the
purchaser or any designee thereof the ownership of such Mortgage
Loan on a servicing released basis. In connection with any such
purchase by any Person other than it, the Special Servicer shall
deliver the related Mortgage File to or at the direction of the
purchaser. In any case, the Master Servicer shall deposit the
purchase price (except that portion of any purchase price
constituting Gain-on-Sale Proceeds which shall be deposited in the
Gain-on-Sale Reserve Account) into the Certificate Account within
one (1) Business Day following the closing of the sale of the
related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and
the Special Servicer upon the holder of the effective Purchase
Option's failure to remit the purchase price specified in its
Purchase Option Notice pursuant to this clause (v). Thereafter, the
Trustee shall notify each Option Holder of such failure and any
Option Holder may then exercise its purchase option in accordance
with this Section 3.18(a).
(v) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special
Servicer shall pursue such other resolution strategies with respect
to such Defaulted Mortgage Loan, including, without limitation,
workout and foreclosure, as the Special Servicer may deem
appropriate, consistent with the Asset Status Report and the
Servicing Standards and the REMIC Provisions; provided, however, the
Special Servicer shall not sell any Defaulted Mortgage Loan (other
than in connection with exercise of a related Purchase Option or as
otherwise permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Serviced Whole Loan, such purchase
shall be a purchase of the entire REO Property, including the portion relating
to the Companion Loans). The Special Servicer may also offer to sell to any
Person any REO Property (in the case of a Serviced Whole Loan, such sale shall
be a sale of the entire REO Property, including the portion relating to the
Companion Loans), if and when the Special Servicer determines, consistent with
the Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund and the Companion Holders. The Special Servicer
shall give the Trustee, the Master Servicer, the Paying Agent, each Companion
Holder and the Directing Certificateholder not less than five (5) Business Days'
prior written notice of the Purchase Price and its intention to (i) purchase any
REO Property at the Purchase Price therefor or (ii) sell any REO Property, in
which case the Special Servicer shall accept the highest offer received from any
Person for any REO Property in an amount at least equal to the Purchase Price
therefor. To the extent permitted by applicable law, and subject to the
Servicing Standards, the Master Servicer, an Affiliate of the Master Servicer,
the Special Servicer or an Affiliate of the Special Servicer, or an employee of
either of them may act as broker in connection with the sale of any REO Property
and may retain from the proceeds of such sale a brokerage commission that does
not exceed the commission that would have been earned by an independent broker
pursuant to a brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall
accept the highest offer received from any Person that is determined
by the Special Servicer to be a fair price for such REO Property, if
the highest bidder is a Person other than an Interested Person, or
if such price is determined to be such a price by the Trustee, if
the highest bidder is an Interested Person. Notwithstanding anything
to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may make an offer for or
purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with the Servicing
Standards, that rejection of such offer would be in the best
interests of the Certificateholders. In addition, the Special
Servicer may accept a lower offer if it determines, in accordance
with the Servicing Standards, that acceptance of such offer would be
in the best interests of the Certificateholders (for example, if the
prospective buyer making the lower offer is more likely to perform
its obligations, or the terms offered by the prospective buyer
making the lower offer are more favorable).
In determining whether any offer received from an Interested
Person represents a fair price for any REO Property, the Trustee
shall obtain and may conclusively rely on the opinion of an
Independent appraiser or other Independent expert in real estate
matters retained by the Trustee at the expense of the Trust Fund. In
determining whether any offer constitutes a fair price for any REO
Property, the Special Servicer or the Trustee (or, if applicable,
such appraiser) shall take into account, and any appraiser or other
expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition
of such REO Property, the state of the local economy and the Trust
Fund's obligation to comply with REMIC Provisions.
(ii) Subject to the Servicing Standards, the Special Servicer
shall act on behalf of the Trust Fund and the Companion Holders in
negotiating and taking any other action necessary or appropriate in
connection with the sale of any REO Property, including the
collection of all amounts payable in connection therewith. A sale of
any REO Property shall be without recourse to, or representation or
warranty by, the Trustee, the Depositor, the Master Servicer, the
Special Servicer, the Paying Agent or the Trust Fund (except that
any contract of sale and assignment and conveyance documents may
contain customary warranties of title, so long as the only recourse
for breach thereof is to the Trust Fund) and, if consummated in
accordance with the terms of this Agreement, none of the Master
Servicer, the Special Servicer, the Depositor, the Paying Agent nor
the Trustee shall have any liability to the Trust Fund or any
Certificateholder or Companion Holder with respect to the purchase
price therefor accepted by the Special Servicer or the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, the Xxxxxxxxx
Plaza Controlling Holder will have the right to purchase the Xxxxxxxxx Plaza
Mortgage Loan or related REO Property, as applicable. Such right of the
Xxxxxxxxx Plaza Controlling Holder shall be given priority over any provision
described in this Section 3.18 subject, to the extent applicable, to any rights
of a mezzanine lender as set forth in Section 3.18(e). If the Xxxxxxxxx Plaza
Mortgage Loan or related REO Property is purchased by the Xxxxxxxxx Plaza
Controlling Holder, repurchased by the applicable Mortgage Loan Seller or
otherwise ceases to be subject to this Agreement, the Xxxxxxxxx Plaza Companion
Loans, will no longer be subject to this Agreement. None of the Trustee, the
Paying Agent, the Master Servicer nor the Trust Fund shall acquire the Xxxxxxxxx
Plaza Companion Loans.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as and to the extent set forth in the related
Intercreditor Agreement.
(f) In the event the Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither the Master Servicer nor the Special
Servicer shall exercise such right.
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer. (a) The Master Servicer shall deliver all Compensating Interest
Payments to the Paying Agent for deposit in the Distribution Account on each P&I
Advance Date, without any right of reimbursement therefor.
(b) The Master Servicer shall provide to each Companion Holder any
reports or notices required to be delivered to such Companion Holder pursuant to
the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the Certificate Account and available for
distribution on the next Distribution Date, the Master Servicer or the Trustee,
each at its own option and in its sole discretion, as applicable, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one month collection period ending on the then current
Determination Date, for successive one-month periods for a total period not to
exceed 12 months. If the Master Servicer or the Trustee makes such an election
at its sole option and in its sole discretion to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (together with interest
thereon), then such Nonrecoverable Advance (together with interest thereon) or
portion thereof shall continue to be fully reimbursable in the subsequent
collection period (subject, again, to the same sole option to defer; it is
acknowledged that, in such a subsequent period, such Nonrecoverable Advance
shall again be payable first from principal collections as described above prior
to payment from other collections). In connection with a potential election by
the Master Servicer or the Trustee to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the one month
collection period ending on the related Determination Date for any Distribution
Date, the Master Servicer or the Trustee shall further be authorized to wait for
principal collections on the Mortgage Loans to be received before making its
determination of whether to refrain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof) until the end of such collection
period; provided, however, if, at any time the Master Servicer or the Trustee,
as applicable, elects not to refrain from obtaining such reimbursement or
otherwise determines that the reimbursement of a Nonrecoverable Advance during a
one-month collection period will exceed the full amount of the principal portion
of general collections deposited in the Collection Account for such Distribution
Date, then the Master Servicer or the Trustee, as applicable, shall use its
reasonable efforts to give Xxxxx'x and S&P 15 days' notice of such
determination, unless extraordinary circumstances make such notice impractical.
Nothing herein shall give the Master Servicer or the Trustee the right to defer
reimbursement of a Nonrecoverable Advance to the extent of any principal
collections then available in the Certificate Account pursuant to Section
3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, that the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to the Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standards and/or with respect to the Trustee (solely in its capacity as
Trustee), constitute a violation of any fiduciary duty to Certificateholders or
any contractual obligation hereunder. If the Master Servicer or the Trustee, as
applicable, determines, in its sole discretion, that its ability to fully
recover the Nonrecoverable Advances has been compromised, then the Master
Servicer or the Trustee, as applicable, shall be entitled to immediate
reimbursement of Nonrecoverable Advances with interest thereon at the
Reimbursement Rate from all amounts in the Certificate Account for such
Distribution Date (deemed first from principal and then interest). Any such
election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The Master Servicer's
or the Trustee's, as applicable, agreement to defer reimbursement of such
Nonrecoverable Advances as set forth above is an accommodation to the
Certificateholders and shall not be construed as an obligation on the part of
the Master Servicer or the Trustee, as applicable, or a right of the
Certificateholders. Nothing herein shall be deemed to create in the
Certificateholders a right to prior payment of distributions over the Master
Servicer's or the Trustee's, as applicable, right to reimbursement for Advances
(deferred or otherwise) and accrued interest thereon. In all events, the
decision to defer reimbursement or to seek immediate reimbursement of
Nonrecoverable Advances shall be deemed to be in accordance with the Servicing
Standard and none of the Master Servicer, the Trustee or the other parties to
this Agreement shall have any liability to one another or to any of the
Certificateholders or any of the Companion Holders for any such election that
such party makes as contemplated by this section or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), Section 3.20(i), Section 3.20(j) and Section
6.07, but subject to any other conditions set forth thereunder, and, with
respect to any Serviced Whole Loan, subject to the rights of the related
Companion Holder to advise the Master Servicer with respect to, or consent to, a
modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement, the Master Servicer shall not modify, waive or amend
the terms of a Mortgage Loan and/or Companion Loan without the prior written
consent of the Special Servicer (and such written consent request by the Master
Servicer shall be accompanied by the Master Servicer's written analysis and
recommendation); provided that, the Master Servicer shall forward to the Special
Servicer requests along with its written analysis and recommendation to extend
the maturity date of a Mortgage Loan and/or Companion Loan that is not a
Specially Serviced Mortgage Loan, and the Special Servicer may approve such
request, and provided further, that except as provided in the following
sentence, no extension entered into pursuant to this Section 3.20(a) shall
extend the Maturity Date beyond the earlier of (i) two years prior to the Rated
Final Distribution Date and (ii) in the case of a Mortgage Loan secured by a
leasehold estate and not also the related fee interest, the date twenty years
or, to the extent consistent with the Servicing Standards giving due
consideration to the remaining term of the ground lease, ten years, prior to the
expiration of such leasehold estate. If such extension would extend the Maturity
Date of a Mortgage Loan and/or Companion Loan for more than twelve months from
and after the original Maturity Date of such Mortgage Loan and/or Companion Loan
and such Mortgage Loan and/or Companion Loan is not in default or default with
respect thereto is not reasonably foreseeable, the Master Servicer must provide
the Trustee, the Special Servicer and the Directing Certificateholders with an
Opinion of Counsel (at the expense of the related Mortgagor to the extent
permitted under the Mortgage Loan documents and, if not required or permitted to
be paid by the Mortgagor, to be paid as a Trust Fund expense in accordance with
Section 3.11(d) and the Special Servicer shall not consent to such extension
without the consent of the Directing Certificateholder) that such extension
would not constitute a "significant modification" of the Mortgage Loan and/or
Companion Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
Notwithstanding the foregoing, subject to the rights of the related Companion
Holder to advise the Master Servicer with respect to, or consent to, such
modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement, the Master Servicer, without the consent of the Special
Servicer, may modify or amend the terms of any Mortgage Loan and/or Companion
Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or
supplement any provisions therein which may be inconsistent with any other
provisions therein or correct any error, provided that, if the Mortgage Loan
and/or Companion Loan is not in default or default with respect thereto is not
reasonably foreseeable, such modification or amendment would not be a
"significant modification" of the Mortgage Loan and/or Companion Loan within the
meaning of Treasury Regulations Section 1.860G-2(b).
Subject to Section 6.07 herein, applicable law and the Mortgage Loan
or Companion Loan documents, neither the Master Servicer nor the Special
Servicer shall permit the substitution of any Mortgaged Property (or any portion
thereof) for one or more other parcels of real property at any time the Mortgage
Loan and/or Companion Loan is not in default pursuant to the terms of the
related Mortgage Loan and/or Companion Loan documents or default with respect
thereto is not reasonably foreseeable unless (i) the Master Servicer or the
Special Servicer, as applicable, obtains from each Rating Agency (and delivers
to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates or any class of Serviced
Companion Loan Securities and (ii) either (a) such substitution is at the
unilateral option of the Mortgagor or otherwise occurs automatically pursuant to
the terms of the Mortgage Loan in effect on the Startup Day, within the meaning
of Treasury Regulations Section 1.1001-3, or (b) it has received an Opinion of
Counsel to the effect that such substitution would not be a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan and/or Companion Loan or otherwise, the release of collateral
or the pledge of additional collateral) of the terms of a Specially Serviced
Mortgage Loan with respect to which a payment default or other material default
has occurred or a payment default or other material default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is reasonably likely to produce a greater
recovery on a net present value basis (the relevant discounting to be performed
at the related Mortgage Rate) to the Trust and, if applicable, the Companion
Holders as the holders of such Companion Loans than liquidation of such
Specially Serviced Mortgage Loan, then the Special Servicer may agree to a
modification, waiver or amendment of such Specially Serviced Mortgage Loan,
subject to (x) the provisions of this Section 3.20(b) and Section 3.20(c), (y)
the approval of the Directing Certificateholder as provided in Section 3.21 and
(z) with respect to a Serviced Whole Loan, the rights of the related Serviced
Companion Noteholder, to advise and consult with the Special Servicer with
respect to, or consent to, such modification, waiver or amendment pursuant to
the terms of the related Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) The Special Servicer may, consistent with the Servicing
Standard, agree to any waiver, modification or amendment of a Mortgage Loan or
Companion Loan that is not in default or as to which default is not reasonably
foreseeable, if it consults with counsel (and, if determined by the 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 out of the Certificate Account pursuant to
Section 3.05(a); provided that the Master Servicer or Special Servicer, as the
case may be, shall use its reasonable efforts to collect such fee from the
Mortgagor or such other Person to the extent permitted under the related
Mortgage Loan documents)) 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) and (ii) will not cause (x) either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the Master
Servicer nor the Special Servicer may waive the payment of any Yield Maintenance
Charge or the requirement that any prepayment of a Mortgage Loan be made on a
Due Date, or if not made on a Due Date, be accompanied by all interest that
would be due on the next Due Date with respect to any Mortgage Loan or Companion
Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification that creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
(other than the Class A-MFL, Class R or Class LR Certificates) and the Class
A-MFL Regular Interest pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Master Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Master Servicer's or the
Special Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Companion Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to the Master Servicer or the Special Servicer, as the case may be, as
additional servicing compensation, a reasonable or customary fee, for the
additional services performed in connection with such request; provided, that
the charging of such fee is not a "significant modification" of the Mortgage
Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the Master Servicer or the Special
Servicer, as the case may be, and the related Mortgagor (and by any guarantor of
the related Mortgage Loan, if such guarantor's signature is required by the
Special Servicer in accordance with the Servicing Standards).
(h) Each of the Master Servicer and the Special Servicer shall
notify the Rating Agencies, the Trustee, the Directing Certificateholder, the
applicable Companion Holder, the Mortgage Loan Sellers (if such Mortgage Loan
Seller is not a Servicer, Sub-Servicer of such Mortgage Loan or the Directing
Certificateholder), if any, and each other in writing of any modification,
waiver or amendment of any term of any Mortgage Loan or Companion Loan and the
date thereof, and shall deliver to the Trustee or the related Custodian with a
copy to the Master Servicer (if such notice is being delivered by the Special
Servicer) for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly (and
in any event within 10 Business Days) following the execution thereof, with a
copy to the applicable Companion Holder, if any. Following receipt of the Master
Servicer's or the Special Servicer's, as applicable, delivery of the aforesaid
modification, waiver or amendment to the Paying Agent, the Paying Agent shall
forward a copy thereof to each Holder of a Class X-1, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q, Class T or Class NR Certificate upon request.
(i) Notwithstanding the foregoing, neither the Master Servicer nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan or a Serviced Whole
Loan unless such defeasance complies with Treasury Regulations Section
1.860G-2(a)(8) and the Master Servicer or the Special Servicer, as applicable,
has received (i) replacement collateral consisting of government securities
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) (including,
if the Mortgage Loan provides only for U.S. Treasury obligations, such other
government securities, within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as are acceptable to the Rating Agencies, provided that the
Mortgagor has furnished the Master Servicer or the Special Servicer, as
applicable, with an Opinion of Counsel that acceptance of such substitute
securities will not cause an Adverse REMIC Event), in an amount sufficient to
make all scheduled payments under the Mortgage Loan (or defeased portion
thereof) when due (and assuming, in the case of a Mortgage Loan with an
anticipated repayment date, to the extent consistent with the related Mortgage
Loan documents, that such Mortgage Loan matures on its anticipated repayment
date), (ii) a certificate of an Independent certified public accountant to the
effect that such substituted property will provide cash flows sufficient to meet
all payments of interest and principal (including payments at maturity) on such
Mortgage Loan or Serviced Whole Loan in compliance with the requirements of the
terms of the related Mortgage Loan documents and, if applicable, Companion Loan
documents, (iii) one or more Opinions of Counsel (at the expense of the related
Mortgagor) to the effect that the Trustee, on behalf of the Trust Fund, will
have a first priority perfected security interest in such substituted Mortgaged
Property; provided, however, that, to the extent consistent with the related
Mortgage Loan documents and, if applicable, Companion Loan documents, the
related Mortgagor shall pay the cost of any such opinion as a condition to
granting such defeasance, (iv) to the extent consistent with the related
Mortgage Loan documents, the Mortgagor shall establish a single purpose entity
to act as a successor Mortgagor, if so required by the Rating Agencies, (v) to
the extent permissible under the related Mortgage Loan documents and, if
applicable, Companion Loan documents, the Master Servicer or Special Servicer,
as applicable shall use its reasonable efforts to require the related Mortgagor
to pay all costs of such defeasance, including but not limited to the cost of
maintaining any successor Mortgagor, and (vi) to the extent permissible under
the Mortgage Loan documents and, if applicable, Companion Loan documents, the
Master Servicer or Special Servicer, as applicable shall obtain, at the expense
of the related Mortgagor, written confirmation from the Rating Agencies that
such defeasance will not cause the downgrade, withdrawal or modification of the
then current ratings of the Certificates (or, insofar as there is then
outstanding any class of Serviced Companion Loan Securities that is then rated
by such Rating Agency, such class of securities); provided, however, that no
such confirmation: (a) from S&P shall be required to the extent that the Master
Servicer has delivered a defeasance certificate substantially in the form of
Exhibit R for any Mortgage Loan which (together with any Mortgage Loans cross
collateralized with such Mortgage Loans) is: (i) a Mortgage Loan with a Cut-off
Date Principal Balance less than $35,000,000, (ii) a Mortgage Loan that
represents less than 5% of the Cut-off Date Principal Balance of all Mortgage
Loans, and (iii) a Mortgage Loan that is not one of the ten largest Mortgage
Loans by Stated Principal Balance; and (b) the Master Servicer or Special
Servicer, as applicable shall not be required to obtain the Xxxxx'x confirmation
referenced in clause (v) above with respect to any Mortgage Loan which has a
Stated Principal Balance less than $20,000,000 and represents less than 5% of
the Stated Principal Balance of all the Mortgage Loans, so long as such Mortgage
Loan is not one of the ten largest Mortgage Loans by Stated Principal Balance.
Notwithstanding the foregoing, in the event that requiring the Mortgagor to pay
for the items specified in clauses (ii), (iv) and (v) in the preceding sentence
would be inconsistent with the related Mortgage Loan documents, such reasonable
costs shall be paid by the related Mortgage Loan Seller as set forth in the
first paragraph of Section 2.03(b).
(j) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
Master Servicer or the Special Servicer may permit the substitution of
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan or a Serviced Whole Loan, as applicable (or any portion
thereof), in lieu of the defeasance collateral specified in the related Mortgage
Loan or a Serviced Whole Loan, as applicable, or Companion Loan documents;
provided that such substitution is consistent with the Servicing Standard and
the Master Servicer or the Special Servicer reasonably determines that allowing
their use would not cause a default or event of default to become reasonably
foreseeable and the Master Servicer or the Special Servicer receives, to the
extent permitted under the Mortgage Loan documents or as may be consistent with
the Servicing Standard an Opinion of Counsel (at the expense of the Mortgagor to
the extent permitted under the Mortgage Loan documents and, if applicable,
Companion Loan documents or otherwise as a Trust Fund expense) to the effect
that such use would not be and would not constitute a "significant modification"
of such Mortgage Loan or Companion Loan pursuant to Treasury Regulations Section
1.860G-2(b) and would not otherwise constitute an Adverse REMIC Event with
respect to any REMIC and provided, further, that the requirements set forth in
Section 3.20(i) (including the ratings confirmations) are satisfied; and
provided, further, that such securities are backed by the full faith and credit
of the United States government, or the Master Servicer or the Special Servicer
shall obtain a written confirmation of each Rating Agency that the use of such
securities will not result in the downgrade, withdrawal or qualification of the
then current ratings of any Class of Certificates outstanding (or, insofar as
there is then outstanding any class of Serviced Companion Loan Securities that
is then rated by such Rating Agency, such class of securities).
(k) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, the Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by the Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall the Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by the Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, the Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
(l) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall,
unless it has received prior written confirmation (the cost of which shall be
paid by the related Mortgagor, if so allowed by the terms of the related loan
documents and otherwise paid out of general collections) from the Rating
Agencies that such action will not result in a qualification, downgrade or
withdrawal of any of the ratings assigned by such Rating Agency to the
Certificates (or, insofar as there is then outstanding any class of Serviced
Companion Loan Securities then rated by such Rating Agency, such class of
securities), grant or accept any consent, approval or direction regarding the
termination of the related property manager or the designation of any
replacement property manager, with respect to any Mortgaged Property that
secures a Mortgage Loan that (i) is one of the ten largest Mortgage Loans by
Stated Principal Balance or (ii) has an unpaid principal balance that is at
least equal to five percent (5%) of the then aggregate principal balance of all
Mortgage Loans or $35,000,000.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the Master Servicer or the Special Servicer, as applicable,
shall promptly give notice to the Master Servicer or the Special Servicer, as
applicable, and the Directing Certificateholder thereof, and the Master Servicer
shall deliver the related Mortgage File and Servicing File to the Special
Servicer and shall use its reasonable efforts to provide the Special Servicer
with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and, if applicable, the related Companion Loan, either in the
Master Servicer's possession or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto.
The Master Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each related
Servicing Transfer Event and in any event shall continue to act as Master
Servicer and administrator of such Mortgage Loan and, if applicable, the related
Companion Loan(s) until the Special Servicer has commenced the servicing of such
Mortgage Loan and, if applicable, the related Companion Loan. The Master
Servicer shall deliver to the Trustee, the Paying Agent and the Directing
Certificateholder a copy of the notice of such Servicing Transfer Event provided
by the Master Servicer to the Special Servicer, or by the Special Servicer to
the Master Servicer, pursuant to this Section. The Paying Agent shall deliver to
each Controlling Class Certificateholder a copy of the notice of such Servicing
Transfer Event provided by the Master Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the Master Servicer and the Directing Certificateholder and shall return the
related Mortgage File and Servicing File to the Master Servicer (or copies
thereof if copies only were delivered to the Special Servicer) and upon giving
such notice, and returning such Mortgage File and Servicing File to the Master
Servicer, the Special Servicer's obligation to service such Corrected Mortgage
Loan shall terminate and the obligations of the Master Servicer to service and
administer such Mortgage Loan and, if applicable, the Companion Loan, shall
recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File to the extent within its possession or created by it (with a copy
of each such original to the Master Servicer), and provide the Master Servicer
with copies of any additional related Mortgage Loan or Companion Loan
information including correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties (other
than with respect to a Non-Serviced Mortgage Loan) and shall provide the Special
Servicer with any information in its possession with respect to such records to
enable the Special Servicer to perform its duties under this Agreement, provided
that this statement shall not be construed to require the Master Servicer to
produce any additional reports.
(d) No later than 60 days after a Servicing Transfer Event for a
Mortgage Loan (other than a Non-Serviced Mortgage Loan) and, if applicable, the
Companion Loan, the Special Servicer shall deliver to the Master Servicer, each
Rating Agency, the Trustee, the Paying Agent, each related Companion Holder and
the Directing Certificateholder, a report (the "Asset Status Report") with
respect to such Mortgage Loan or Companion Loan and the related Mortgaged
Property; provided, however, the Special Servicer shall not be required to
deliver an Asset Status Report to the Directing Certificateholder if they are
the same entity. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable based on the information that
was delivered to the Special Servicer in connection with the transfer of
servicing pursuant to the Servicing Transfer Event:
(i) summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standards, that are applicable to the exercise of
remedies as aforesaid and to the enforcement of any related
guaranties or other collateral for the related Mortgage Loan and
whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such
Specially Serviced Mortgage Loan might be returned to performing
status and returned to the Master Servicer for regular servicing or
otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged
Property; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standards.
If within ten (10) Business Days of receiving an Asset Status
Report, the Directing Certificateholder does not disapprove such Asset Status
Report in writing, the Special Servicer shall implement the recommended action
as outlined in such Asset Status Report and shall promptly furnish the
applicable Mortgage Loan Seller with a copy thereof; provided, however, that the
Special Servicer may not take any action that is contrary to applicable law, the
Servicing Standards or the terms of the applicable Mortgage Loan documents. If
the Directing Certificateholder disapproves such Asset Status Report within ten
(10) Business Days of receipt, the Special Servicer will revise such Asset
Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the applicable Mortgage Loan Seller, the Trustee and the Master
Servicer a new Asset Status Report as soon as practicable, but in no event later
than 30 days after such disapproval. The Special Servicer shall revise such
Asset Status Report as described above in this Section 3.21(d) until the
Directing Certificateholder shall fail to disapprove such revised Asset Status
Report in writing within ten (10) Business Days of receiving such revised Asset
Status Report or until the Special Servicer makes one of the determinations
described below. Notwithstanding the foregoing, in the event the Directing
Certificateholder and the Special Servicer have been unable to agree upon an
Asset Status Report with respect to a Specially Serviced Mortgage Loan within 90
days of the Directing Certificateholder's receipt of the initial Asset Status
Report, the Special Servicer subject to the rights of the related Companion
Holder pursuant to the related Intercreditor Agreement, if applicable, shall
implement the actions directed by the Directing Certificateholder unless such
actions would violate the Servicing Standard, in which case the Special Servicer
shall implement actions described in the most recent Asset Status Report
submitted to the Directing Certificateholder by the Special Servicer, and the
Special Servicer shall promptly furnish the applicable Mortgage Loan Seller with
a copy of any Asset Status Report which the Special Servicer intends to or
commences to implement pursuant to this Section 3.21(d). The Special Servicer
may, from time to time, modify any Asset Status Report it has previously
delivered and implement such report, provided such report shall have been
prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Serviced Whole
Loan is involved, the Companion Holder, and it has made a reasonable effort to
contact the Directing Certificateholder and (ii) in any case, shall determine
whether such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards. Each final Asset Status
Report shall be delivered to the Master Servicer, the applicable Mortgage Loan
Seller, the Trustee (upon request) and each Rating Agency.
Subject to the rights of the related Companion Holder to advise the
Special Servicer with respect to, or consent to, such modification, waiver or
amendment pursuant to the terms of the related Intercreditor Agreement, the
Special Servicer shall have the authority to meet with the Mortgagor for any
Specially Serviced Mortgage Loan and take such actions consistent with the
Servicing Standards and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standards.
No direction or disapproval of the Directing Certificateholder
hereunder or failure of the Directing Certificateholder to consent to or approve
(including any deemed consents or approvals) any request of the Special
Servicer, shall (a) require or cause the Special Servicer to violate the terms
of a Specially Serviced Mortgage Loan, applicable law or any provision of this
Agreement, including the Special Servicer's obligation to act in accordance with
the Servicing Standards and to maintain the REMIC status of each of the
Lower-Tier REMIC and the Upper-Tier REMIC, or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) expose the Master Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Sellers, the Trust Fund, the Trustee, the Paying
Agent or their respective officers, directors, employees or agents to any claim,
suit or liability or (d) materially expand the scope of the Special Servicer's,
Trustee's or the Master Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the Master Servicer shall with reasonable promptness give notice
thereof, and shall use its reasonable efforts to provide the Special Servicer
with all information relating to the Mortgage Loan or Companion Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) The Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations hereunder; provided that the
Sub-Servicing Agreement as amended or modified: (i) is consistent with this
Agreement in all material respects and requires the Sub-Servicer to comply with
all of the applicable conditions of this Agreement; (ii) provides that if the
Master Servicer shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), the Trustee
or its designee shall thereupon assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer under such agreement, or, alternatively, may act in accordance with
Section 7.02 hereof under the circumstances described therein (subject to
Section 3.22(g) hereof); (iii) provides that the Trustee for the benefit of the
Certificateholders, the related Companion Holder (if applicable) and the Trustee
(as holder of the Class A-MFL Regular Interest and the Uncertificated Lower-Tier
Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Master Servicer thereunder as contemplated by the
immediately preceding clause (ii)) none of the Trust Fund, the Trustee, the
Paying Agent, the Special Servicer, any successor Master Servicer or any
Certificateholder (or the related Companion Holder, if applicable) shall have
any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty; provided, however,
that the Initial Sub-Servicing Agreements may only be terminated by the Trustee
or its designees as contemplated by Section 3.22(g) hereof and in such
additional manner and by such other Persons as is provided in such Sub-Servicing
Agreement; (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund; and (vi)
does not permit the Sub-Servicer to modify any Mortgage Loan unless and to the
extent the Master Servicer is permitted hereunder to modify such Mortgage Loan.
Any successor Master Servicer hereunder shall, upon becoming successor Master
Servicer, be assigned and shall assume any Sub-Servicing Agreements from the
predecessor Master Servicer (subject to Section 3.22(g) hereof). In addition,
each Sub-Servicing Agreement entered into by the Master Servicer may but need
not provide that the obligations of the Sub-Servicer thereunder shall terminate
with respect to any Mortgage Loan serviced thereunder at the time such Mortgage
Loan becomes a Specially Serviced Mortgage Loan; provided, however, that the
Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement provides for
Advances by the Sub-Servicer, although it need not so provide) that the
Sub-Servicer will continue to make all Advances and calculations and prepare all
reports required under the Sub-Servicing Agreement with respect to Specially
Serviced Mortgage Loans and continue to collect its Primary Servicing Fees as if
no Servicing Transfer Event had occurred and with respect to REO Properties (and
the related REO Loans) as if no REO Acquisition had occurred and to render such
incidental services with respect to such Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for in such Sub-Servicing Agreement.
The Master Servicer shall deliver to the Trustee copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it, in each case promptly upon its execution and delivery of such documents.
References in this Agreement to actions taken or to be taken by the Master
Servicer include actions taken or to be taken by a Sub-Servicer on behalf of the
Master Servicer; and, in connection therewith, all amounts advanced by any
Sub-Servicer (if the Sub-Servicing Agreement provides for Advances by the
Sub-Servicer, although it need not so provide) to satisfy the obligations of the
Master Servicer hereunder to make Advances shall be deemed to have been advanced
by the Master Servicer out of its own funds and, accordingly, in such event,
such Advances shall be recoverable by such Sub-Servicer in the same manner and
out of the same funds as if such Sub-Servicer were the Master Servicer, and, for
so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(d), such interest to be allocable between the
Master Servicer and such Sub-Servicer as may be provided (if at all) pursuant to
the terms of the Sub-Servicing Agreement. For purposes of this Agreement, the
Master Servicer shall be deemed to have received any payment when a Sub-Servicer
retained by it receives such payment. The Master Servicer shall notify the
Special Servicer, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer, except that the Master Servicer need not
provide such notice as to the Initial Sub-Servicing Agreements.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the Master
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each Sub-Servicer under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as is in accordance with the Servicing Standards. The Master Servicer shall
have the right to remove a Sub-Servicer retained by it in accordance with the
terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of the Master Servicer
under any Sub-Servicing Agreement, the Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, except to the extent provided in Article XI with respect
to the obligations of any Sub-Servicer that is an Initial Sub-Servicer, the
Master Servicer shall remain obligated and responsible to the Trustee, the
Special Servicer, holders of the Companion Loans serviced hereunder and the
Certificateholders for the performance of its obligations and duties under this
Agreement in accordance with the provisions hereof to the same extent and under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans for which it is responsible, and the Master Servicer shall
pay the fees of any Sub-Servicer thereunder as and when due from its own funds.
In no event shall the Trust Fund bear any termination fee required to be paid to
any Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate such
Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding
the foregoing or any other contrary provision in this Agreement, the Trustee and
any successor Master Servicer shall assume each Initial Sub-Servicing Agreement
and (i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the Master Servicer pursuant to the terms
hereof (and within the same period of time required herein), within a sufficient
period of time to allow the Sub-Servicer to fulfill its obligations under such
Sub-Servicing Agreement and in no event later than 1 Business Day prior to the
applicable Determination Date (or such other date as specified herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein,
unless (i) the Special Servicer receives the consent of the Directing
Certificateholder and (ii) the Special Servicer receives the written
confirmation of Xxxxx'x that such agreement will not cause the downgrade,
withdrawal or qualification of any of the current ratings assigned to any Class
of Certificates.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicer. (a) The Master Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, the related
Serviced Companion Noteholders and to the Depositor, the Paying Agent and the
Special Servicer, as of the Closing Date, that:
(i) The Master Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of Delaware,
and the Master Servicer is in compliance with the laws of each State
in which any Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms
of this Agreement by the Master Servicer, will not (A) violate the
Master Servicer's organizational documents, (B) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets or (C) violate any
law, rule, regulation, order, judgment or decree to which the Master
Servicer or its property is subject, which, in the case of either
(B) or (C), is likely to materially and adversely affect either the
ability of the Master Servicer to perform its obligations under this
Agreement or its financial condition;
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Special Servicer, the Paying Agent and
the Depositor, constitutes a valid, legal and binding obligation of
the Master Servicer, enforceable against the Master Servicer in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and
other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The Master Servicer is not in 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 Master
Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master
Servicer to perform its obligations under this Agreement or the
financial condition of the Master Servicer;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer, the
outcome of which, in the Master Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Master
Servicer from entering into this Agreement or materially and
adversely affect either the ability of the Master Servicer to
perform its obligations under this Agreement;
(vii) The Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof; and
(viii) No consent, approval, authorization or order,
registration, filing with or notice to any governmental authority or
court is required under federal or state law, for the execution,
delivery and performance by the Master Servicer, or compliance by
the Master Servicer with, this Agreement or the consummation of any
transactions contemplated hereby, other than (A) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made prior to the actual
performance by the Master Servicer of its obligations under this
Agreement and (B) 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 Master
Servicer under this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the related Serviced Companion Noteholders, the Depositor
and the Master Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the state of
its incorporation, and the Special Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this
Agreement;
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms
of this Agreement by the Special Servicer, do not (A) violate the
Special Servicer's organizational documents or articles of
incorporation, as applicable, and by laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other material instrument to which it is a
party or which is applicable to it or any of its assets, or (C)
violate any law, rule, regulation, order, judgment or decree to
which the Special Servicer or its property is subject, which, in the
case of either (B) or (C), is likely to materially and adversely
affect either the ability of the Special Servicer to perform its
obligations under this Agreement or its financial condition;
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions to be performed by it
contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject 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 Special Servicer is not in default with respect to any
law, any order or decree of any court, or any order, regulation or
demand of any federal, state, local or governmental agency, which
default, in the Special Servicer's reasonable judgment is likely to
materially and adversely affect the financial condition or
operations of the Special Servicer or its properties taken as a
whole or its ability to perform its duties and obligations
hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this
Agreement or, in the Special Servicer's good faith and reasonable
judgment is likely to materially and adversely affect the ability of
the Special Servicer to perform its obligations under this
Agreement;
(vii) The Special Servicer has errors and omissions coverage
which is in full force and effect and complies with the requirements
of Section 3.07 hereof; and
(viii) No consent, approval, authorization or order of any
court or governmental agency or body under federal or state law is
required for the execution, delivery and performance by the Special
Servicer, or compliance by the Special Servicer with, this Agreement
or the consummation of the transactions of the Special Servicer
contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained or can be obtained
prior to the actual performance by the Special Servicer of its
obligations under this Agreement, and which, if not obtained would
not have a materially adverse effect on the ability of the Special
Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December (unless in either such case, the
related Distribution Date is the final Distribution Date), the Paying Agent, in
respect of the Actual/360 Mortgage Loans, shall deposit into the Interest
Reserve Account, an amount equal to one day's interest on the Stated Principal
Balance of the Interest Reserve Loans as of the Due Date occurring in the month
preceding the month in which such P&I Advance Date occurs at the related Net
Mortgage Rate, to the extent a full Monthly Payment or P&I Advance is made in
respect thereof (all amounts so deposited in any consecutive February and
January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March (or February, if the
related Distribution Date is the final Distribution Date), the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January and February (if applicable), if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 [Reserved].
Section 3.27 Directing Certificateholder Contact with Master
Servicer and Special Servicer. No less often than on a monthly basis, each of
the Master Servicer and the Special Servicer shall, without charge, make a
knowledgeable Servicing Officer via telephone available to verbally answer
questions from the Directing Certificateholder regarding the performance and
servicing of the Mortgage Loans and/or REO Properties for which the Master
Servicer or the Special Servicer, as the case may be, is responsible.
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Paying Agent and to notify the Master Servicer, the Paying Agent and Special
Servicer of the transfer of any Certificate of a Controlling Class, the
selection of a Directing Certificateholder or the resignation or removal
thereof. The Directing Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to notify the Master Servicer, Special
Servicer and Paying Agent when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) Once a Directing Certificateholder has been selected, each of
the Master Servicer, the Special Servicer, the Depositor, the Trustee, the
Paying Agent and each other Certificateholder (or Certificate Owner, if
applicable) shall be entitled to rely on such selection unless a majority of the
Controlling Class Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Master Servicer, Special Servicer, the
Trustee, the Paying Agent and each other Controlling Class Certificateholder, in
writing, of the resignation of such Directing Certificateholder or the selection
of a new Directing Certificateholder. Upon the resignation of a Directing
Certificateholder, the Paying Agent shall request the Controlling Class
Certificateholders to select a new Directing Certificateholder.
(c) Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the most recent notification with respect to the identity of
the Controlling Class Certificateholder and the Directing Certificateholder.
(d) Upon request, the Paying Agent shall deliver to the Trustee, the
Special Servicer and the Master Servicer a list of each Controlling Class
Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Trustee, the Master Servicer and the Special Servicer.
Notwithstanding the foregoing, Centerline REIT Inc. shall be the initial
Directing Certificateholder and shall remain so until a successor is appointed
pursuant to the terms of this Agreement.
Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder.
(e) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository) of such event.
(f) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder may take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever (other than to a Controlling Class Certificateholder) for
having so acted, and no Certificateholder may take any action whatsoever against
the Directing Certificateholder or any director, officer, employee, agent or
principal thereof for having so acted.
(g) All requirements of the Master Servicer and the Special Servicer
to provide notices, reports, statements or other information (including the
access to information on a website) provided to the Directing Certificateholder
contained in this Agreement shall also apply to each Companion Holder with
respect to information relating to the related AB Mortgage Loan or a Serviced
Whole Loan, as applicable.
(h) With respect to a Serviced Whole Loan and any approval and
consent rights in this Agreement with respect to the Serviced Whole Loan, the
related Serviced Whole Loan Controlling Holder shall exercise such rights in
accordance with the related Intercreditor Agreement.
Section 3.29 Intercreditor Agreements. Each of the Master Servicer
and Special Servicer acknowledges and agrees that each Serviced Whole Loan being
serviced under this Agreement and each Mortgage Loan with mezzanine debt is
subject to the terms and provisions of the related Intercreditor Agreement and
each agrees to service each such Serviced Whole Loan and each Mortgage Loan with
mezzanine debt in accordance with the related Intercreditor Agreement and this
Agreement, including, without limitation, effecting distributions and allocating
reimbursement of expenses in accordance with the related Intercreditor Agreement
and, in the event of any conflict between the provisions of this Agreement and
the related Intercreditor Agreement, the related Intercreditor Agreement shall
govern. Notwithstanding anything contrary in this Agreement, each of the Master
Servicer and Special Servicer agrees not to take any action with respect to a
Serviced Whole Loan or a Mortgage Loan with mezzanine debt or the related
Mortgaged Property without the prior consent of the related Companion Holder or
mezzanine lender, as applicable, to the extent that the related Intercreditor
Agreement provides that such Companion Holder or mezzanine lender, as
applicable, is required to consent to such action. Each of the Master Servicer
and Special Servicer acknowledges and agrees that each Companion Holder and
mezzanine lender or its respective designee has the right to purchase the
related Mortgage Loan pursuant to the terms and conditions of the related
Intercreditor Agreement to the extent provided for therein.
Neither the Master Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder or mezzanine lender under the related Intercreditor
Agreement or conflict between the terms of this Agreement and the terms of such
Intercreditor Agreement. Notwithstanding any provision of any Intercreditor
Agreement that may otherwise require the Master Servicer or the Special Servicer
to abide by any instruction or direction of a Companion Holder or mezzanine
lender, neither the Master Servicer nor the Special Servicer shall be required
to comply with any instruction or direction the compliance with which requires
an Advance that constitutes or would constitute a Nonrecoverable Advance. In no
event shall any expense arising from compliance with an Intercreditor Agreement
constitute an expense to be borne by the Master Servicer or Special Servicer for
its own account without reimbursement. In no event shall the Master Servicer or
the Special Servicer be required to consult with or obtain the consent of any
Companion Holder or mezzanine lender unless such Companion Holder or mezzanine
lender has delivered notice of its identity and contact information to each of
the parties to this Agreement (upon which notice each of the parties to this
Agreement shall be conclusively entitled to rely). As of the Closing Date, the
contact information for the Companion Holders and mezzanine lenders is as set
forth in the related Intercreditor Agreement, or as otherwise set forth in
Section 12.05 of this Agreement.
No direction or disapproval of the Companion Holders or the
mezzanine lenders shall (a) require or cause the Master Servicer or Special
Servicer to violate the terms of a Mortgage Loan, applicable law or any
provision of this Agreement, including the Master Servicer's or Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each of the Lower-Tier REMIC and the Upper-Tier
REMIC or the grantor trust status of the Grantor Trust or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) materially expand the scope of the Special
Servicer's, Trustee's, the Paying Agent's or the Master Servicer's
responsibilities under this Agreement.
Section 3.30 Companion Paying Agent. (a) With respect to each of the
Companion Loans, the Master Servicer shall be the Companion Paying Agent
hereunder. The Companion Paying Agent undertakes to perform such duties and only
such duties as are specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) In the case of each of the Companion Loans, upon the resignation
or removal of the Master Servicer pursuant to Article VII of this Agreement, the
Master Servicer, as the Companion Paying Agent, shall be deemed simultaneously
to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register. The Companion Paying Agent shall
maintain a register (the "Companion Register") with respect to each Serviced
Companion Loan on which it will record the names and address of, and wire
transfer instructions for, the Companion Holders from time to time, to the
extent such information is provided in writing to it by each Companion Holder.
The initial Companion Holders, along with their respective name and address, are
listed on Exhibit Q hereto. In the event a Companion Holder transfers a
Companion Loan without notice to the Companion Paying Agent, the Companion
Paying Agent shall have no liability for any misdirected payment in the
Companion Loan and shall have no obligation to recover and redirect such
payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
Section 3.32 Swap Contract. (a) On or before the Closing Date, the
Trustee, not in its individual capacity but solely in its capacity as Trustee,
on behalf of the Trust, shall enter into the Swap Contract and related
agreements with the Swap Counterparty. The Paying Agent shall perform the duties
and obligations of the Trustee under the Swap Contract.
(b) On the Business Day prior to each P&I Advance Date, based on the
reports provided by the Master Servicer pursuant to Section 3.12(e), information
that the Paying Agent obtains from the Swap Counterparty and the Swap Contract,
and subject to the priorities set forth in Sections 4.01(a), 4.01(b) and 4.01(d)
hereof, the Paying Agent shall calculate the Class A-MFL Net Swap Payment and
notify the Swap Counterparty in accordance with the terms of the Swap Contract.
(c) No later than 4:00 p.m. New York City time on each Distribution
Date, the Paying Agent shall remit the Class A-MFL Net Swap Payment, if any, to
the Swap Counterparty from the Floating Rate Account; provided, that upon the
occurrence and during the continuation of a Class A-MFL Distribution Conversion,
the Paying Agent shall not make such payments to the Swap Counterparty. Promptly
upon receipt of any payment or other receipt in respect of the Swap Contract,
the Paying Agent shall deposit the same into the Floating Rate Account.
(d) The Trustee (or the Paying Agent on behalf of the Trustee) shall
at all times enforce the Trust's rights under the Swap Contract. In the event of
a Swap Default, the Trustee (or the Paying Agent on its behalf) shall promptly
provide written notice to the Holders of the Class A-MFL Certificates and shall
be required, subject to the Trustee's or the Paying Agent's, as applicable,
determination that costs of enforcement will be recoverable from or indemnified
by the Holders of the Class A-MFL Certificates to take such actions (following
the expiration of any applicable grace period specified in the Swap Contract),
unless otherwise directed in writing by the Holders of 25% (by Certificate
Balance) of the Class A-MFL Certificates to enforce the rights of the Trust
under the Swap Contract as may be permitted by the terms thereof and use any
Swap Termination Fees received from the Swap Counterparty to enter into a
replacement interest rate swap contract on substantially identical terms or on
such other terms reasonably acceptable to the Trustee (or the Paying Agent on
its behalf), with a replacement swap counterparty that would not cause a Rating
Agency Trigger Event, subject, in each case, to written confirmation by the
Rating Agencies that such action will not result in a qualification, downgrade
or withdrawal of the then-current ratings of the Certificates. If the costs
attributable to entering into a replacement interest rate swap contract would
exceed the amount of any Swap Termination Fees, a replacement interest rate swap
contract shall not be entered into and any such proceeds will instead be
distributed, pro rata, to the Holders of the Class A-MFL Certificates on the
immediately succeeding Distribution Date. The Trustee and the Paying Agent shall
be entitled to require reasonable assurances of payment (including, without
limitation, reasonable indemnity therefor) from the Holders of the Class A-MFL
Certificates prior to the incurrence of any costs in connection with the
enforcement of the Swap Contract.
Any Class A-MFL Distribution Conversion shall become permanent
following the determination by the Trustee (or the Paying Agent acting on its
behalf) not to enter into a replacement interest rate swap contract and
distribution of any Swap Termination Fees to the Holders of the Class A-MFL
Certificates. Any such Swap Default (or termination of the Swap Contract) and
the consequent Class A-MFL Distribution Conversion shall not, in and of itself,
constitute an Event of Default under this Agreement.
Upon any change (or notification to the Paying Agent that such
change is imminent) in the payment terms on the Class A-MFL Certificates
including as a result of a Class A-MFL Distribution Conversion, termination of a
Class A-MFL Distribution Conversion, a Swap Default or the cure of a Swap
Default, the Paying Agent shall promptly notify DTC of the change in payment
terms.
(e) In the event that the Swap Contract is terminated and no
replacement interest rate swap agreement is entered into within 30 days of such
termination, the Paying Agent shall provide notice of such termination to the
Class A-MFL Certificateholders, which notice shall include: "The Swap Contract
with respect to the Class A-MFL Certificates is terminated as of [date].
Certificateholders and beneficial owners that are Plans are advised that the
Exemption will no longer apply to the Class A-MFL Certificates, effective 60
days after the receipt of this notice. "Exemption", as used in this notice,
shall mean Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14,979 (March
28, 2002), granted by the U.S. Department of Labor to X.X. Xxxxxx Securities
Inc. All other capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing Agreement." All other capitalized
terms used in this notice shall have the meaning assigned to them in the Pooling
and Servicing Agreement.
(f) Any costs and expenses related to the Swap Contract (other than
Class A-MFL Net Swap Payments) will only be payable (subsequent to the
distribution of all amounts of principal and interest and reimbursement of
Collateral Support Deficits payable to the Class A-MFL Certificates) from the
Floating Rate Account, which in no circumstances will constitute Additional
Trust Fund Expenses.
(g) The Trustee (or the Paying Agent on the Trustee's behalf) shall
establish a Swap Counterparty Collateral Account. The Trustee (or the Paying
Agent on the Trustee's behalf) shall deposit all collateral received from the
Swap Counterparty under any Credit Support Annex (as defined in the Swap
Contract) of the Swap Contract into the Swap Counterparty Collateral Account.
The only permitted withdrawal from or application of funds on deposit in, or
otherwise to the credit of, the Swap Counterparty Collateral Account shall be
(i) for application to obligations of the Swap Counterparty under the Swap
Contract if such Swap Contract becomes subject to early termination or upon
default by the Swap Counterparty or (ii) to return collateral to the Swap
Counterparty when and as required by the Swap Contract. The Trustee (or the
Paying Agent on the Trustee's behalf) agrees to give the Swap Counterparty
prompt notice if it obtains knowledge that the Swap Counterparty Collateral
Account or any funds on deposit therein or otherwise to the credit of the Swap
Counterparty Collateral Account, shall become subject to any writ, order,
judgment, warrant of attachment, execution or similar process. Funds credited to
the Swap Counterparty Collateral Account shall be applied as contemplated in the
Swap Contract. Subject to the terms of the Swap Contract, proceeds of
liquidation of any Swap Contract collateral (if such Swap Contract becomes
subject to early termination or upon default by the Swap Counterparty) shall be
deposited in the Floating Rate Account for application as applicable.
Section 3.33 Certain Matters Relating to the Non-Serviced Mortgage
Loans. In the event that any of the applicable Non-Serviced Trustee, the
applicable Non-Serviced Master Servicer or the applicable Non-Serviced Special
Servicer shall be replaced in accordance with the terms of the applicable
Non-Serviced Pooling Agreement, the Master Servicer and the Special Servicer
shall acknowledge its successor as the successor to the applicable Non-Serviced
Trustee, the applicable Non-Serviced Master Servicer or the applicable
Non-Serviced Special Servicer, as the case may be.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Paying Agent shall be deemed to transfer the Lower-Tier Distribution Amount from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account in
the amounts and priorities set forth in Section 4.01(b) with respect to each
Class of Uncertificated Lower-Tier Interests, and immediately thereafter, shall
make distributions thereof from the Upper-Tier Distribution Account in the
following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3
Certificates, the Class A-4 Certificates and the Class A-SB
Certificates, pro rata (based upon their respective entitlements to
interest for such Distribution Date), in respect of interest, from
the Loan Group 1 Available Distribution Amount and up to an amount
equal to the aggregate Interest Distribution Amount in respect of
such Classes of Certificates for such Distribution Date; (B) to the
Holders of the Class A-1A Certificates, in respect of interest, from
the Loan Group 2 Available Distribution Amount and up to an amount
equal to the aggregate Interest Distribution Amount in respect of
such Class of Certificates for such Distribution Date and (C) to the
Holders of the Class X-1 Certificates and the Class X-2
Certificates, in respect of interest, up to an amount equal to the
Interest Distribution Amount payable in respect of such Classes of
Certificates for such Distribution Date; provided, however, that if
the Loan Group 1 Available Distribution Amount and/or the Loan Group
2 Available Distribution Amount is insufficient to pay in full the
Interest Distribution Amount provided above, payable in respect of
any Class A Certificates or Class X Certificates on such
Distribution Date, then the entire Available Distribution Amount
shall be applied to make distributions of interest to the Holders of
the respective Classes of the Class A Certificates and the Class X
Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, the Interest Distribution Amount in
respect of each such Class of Certificates for such Distribution
Date;
(ii) second, to the Holders of the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-4
Certificates, the Class A-SB Certificates and the Class A-1A
Certificates in reduction of the Certificate Balances thereof,
concurrently: (A)(1) first, to the Holders of the Class A-SB
Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount for such Distribution Date
remaining after the payments specified in clause (B) below have been
made on such Distribution Date, until the outstanding Certificate
Balance of the Class A-SB Certificates has been reduced to the Class
A-SB Planned Principal Balance; (2) second, to the Holders of the
Class A-1 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the
Loan Group 2 Principal Distribution Amount, for such Distribution
Date in each case, to the extent remaining after the payments
specified in clause (A)(1) above and clause (B) below have been made
on such Distribution Date, until the outstanding Certificate Balance
of the Class A-1 Certificates has been reduced to zero; (3) third,
to the Holders of the Class A-2 Certificates, in an amount up to the
Loan Group 1 Principal Distribution Amount and, after the
outstanding Certificate Balance of the Class A-1A Certificates has
been reduced to zero, the Loan Group 2 Principal Distribution
Amount, in each case, to the extent remaining after payments as
specified in clauses (A)(1) and (2) above and clause (B) below have
been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-2 Certificates has been reduced
to zero; (4) fourth, to the Holders of the Class A-3 Certificates,
in an amount up to the Loan Group 1 Principal Distribution Amount
and, after the outstanding Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after
payments as specified in clauses (A)(1), (2) and (3) above and
clause (B) below have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-3 Certificates has
been reduced to zero; (5) fifth, to the Holders of the Class A-4
Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount, in each case, to the extent
remaining after payments as specified in clauses (A)(1), (2), (3)
and (4) above and clause (B) below have been made on such
Distribution Date, until the outstanding Certificate Balance of the
Class A-4 Certificates has been reduced to zero; and (6) sixth, to
the Holders of the Class A-SB Certificates, in an amount up to the
Loan Group 1 Principal Distribution Amount and, after the
outstanding Certificate Balance of the Class A-1A Certificates has
been reduced to zero, the Loan Group 2 Principal Distribution
Amount, in each case, to the extent remaining after payments as
specified in clauses (A)(1), (2), (3), (4) and (5) above and (B)
below have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-SB Certificates has
been reduced to zero and (B) to the Holders of the Class A-1A
Certificates, in an amount up to the Loan Group 2 Principal
Distribution Amount and, after the Certificate Balances of the Class
A-4 and Class A-SB Certificates have been reduced to zero, the Loan
Group 1 Principal Distribution Amount remaining after payments
specified in clauses (A)(1), (2), (3), (4), (5) and (6) above have
been made on such Distribution Date, until the Certificate Balance
of the Class A-1A Certificates has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-SB Certificates and Class A-1A Certificates,
pro rata (based upon the aggregate unreimbursed Collateral Support
Deficit allocated to each such Class), until all amounts of
Collateral Support Deficit previously allocated to such Classes, but
not previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class A-M Certificates and
the Class A-MFL Regular Interest, pro rata, in respect of interest,
up to an amount equal to the aggregate Interest Distribution Amount
in respect of such Class of Certificates and the Class A-MFL Regular
Interest for such Distribution Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class
A-M Certificates and the Class A-MFL Regular Interest, pro rata, in
reduction of the Certificate Balances thereof, an amount equal to
the Principal Distribution Amount (or the portion thereof remaining
after any distributions in respect of the Class A Certificates on
such Distribution Date), until the outstanding Certificate Balances
of the Class A-M Certificates and the Class A-MFL Regular Interest
have been reduced to zero;
(vi) sixth, to the Holders of the Class A-M Certificates and
the Class A-MFL Regular Interest, pro rata, until all amounts of
Collateral Support Deficit previously allocated to the Class A-M
Certificates and the Class A-MFL Regular Interest, but not
previously reimbursed, have been reimbursed in full;
(vii) seventh, to the Holders of Class A-J Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for
such Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A
Certificates and Class A-M Certificates and the Class A-MFL Regular
Interest have been reduced to zero, to the Holders of the Class A-J
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates and the Class A-M Certificates and the Class A-MFL
Regular Interest on such Distribution Date), until the outstanding
Certificate Balance of the Class A-J Certificates has been reduced
to zero;
(ix) ninth, to the Holders of the Class A-J Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class A-J Certificates but not previously reimbursed, have
been reimbursed in full;
(x) tenth, to the Holders of the Class B Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for
such Distribution Date;
(xi) eleventh, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
and Class A-J Certificates have been reduced to zero, to the Holders
of the Class B Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of
the Class A Certificates, Class A-M Certificates, Class A-MFL
Regular Interest and Class A-J Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class B
Certificates has been reduced to zero;
(xii) twelfth, to the Holders of the Class B Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class B Certificates, but not previously reimbursed, have
been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class C Certificates,
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates and Class B Certificates have been
reduced to zero, to the Holders of the Class C Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining
after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-MFL Regular Interest, the Class A-J
Certificates and Class B Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class C
Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class C Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class C Certificates, but not previously reimbursed, have
been reimbursed in full;
(xvi) sixteenth, to the Holders of the Class D Certificates,
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates, Class B Certificates and Class C
Certificates have been reduced to zero, to the Holders of the Class
D Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
Class A-J Certificates, Class B Certificates and Class C
Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class D Certificates has been reduced to
zero;
(xviii) eighteenth, to the Holders of the Class D
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class D Certificates, but not previously
reimbursed, have been reimbursed in full;
(xix) nineteenth, to the Holders of the Class E Certificates,
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
Class A-J Certificates, Class B Certificates, Class C Certificates
and Class D Certificates have been reduced to zero, to the Holders
of the Class E Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of
the Class A Certificates, Class A-M Certificates, Class A-MFL
Regular Interest, Class A-J Certificates, Class B Certificates,
Class C Certificates and Class D Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class E
Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class E
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class E Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxii) twenty-second, to the Holders of the Class F
Certificates, in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates and Class E Certificates have
been reduced to zero, to the Holders of the Class F Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining
after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-MFL Regular Interest, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates and Class E Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class F
Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class F
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class F Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class G Certificates
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates and Class F
Certificates have been reduced to zero, to the Holders of the Class
G Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
Class A-J Certificates, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates and Class F Certificates
on such Distribution Date), until the outstanding Certificate
Balance of the Class G Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class G
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class G Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class H
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates have been reduced to zero, to
the Holders of the Class H Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates and Class G Certificates
on such Distribution Date), until the outstanding Certificate
Balance of the Class H Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class H Certificates, but not previously reimbursed, have
been reimbursed in full;
(xxxi) thirty-first, to the Holders of the Class J
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, 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 have
been reduced to zero, to the Holders of the Class J Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining
after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-MFL Regular Interest, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates and Class H Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class J
Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class J
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class J Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class K
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, 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 have been reduced to zero, to the Holders of the Class
K Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
Class A-J Certificates, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates and Class J Certificates
on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class K
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class K Certificates, but not previously
reimbursed, have been reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class L
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates have been reduced to zero, to
the Holders of the Class L Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-MFL Regular Interest, 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
a on such Distribution Date), until the outstanding Certificate
Balance of the Class L Certificates has been reduced to zero;
(xxxix) thirty ninth, to the Holders of the Class L
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class L Certificates, but not previously
reimbursed, have been reimbursed in full;
(xl) fortieth, to the Holders of the Class M Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for
such Distribution Date;
(xli) forty-first, after the Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, 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 have
been reduced to zero, to the Holders of the Class M Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining
after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-MFL Regular Interest, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates and Class L Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class M
Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class M
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class M Certificates, but not previously
reimbursed, have been reimbursed in full;
(xliii) forty-third, to the Holders of the Class N
Certificates in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, 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 have been reduced to zero, to the Holders of the Class
N Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
Class A-J Certificates, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates,
Class K Certificates, Class L Certificates and Class M Certificates
on such Distribution Date), until the outstanding Certificate
Balance of the Class N Certificates has been reduced to zero;
(xlv) forty-fifth, to the Holders of the Class N Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class N Certificates, but not previously reimbursed, have
been reimbursed in full;
(xlvi) forty-sixth, to the Holders of the Class P Certificates
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, 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 have been reduced to zero, to
the Holders of the Class P Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates,
Class H Certificates, Class J Certificates, Class K Certificates,
Class L Certificates, Class M Certificates and Class N Certificates
on such Distribution Date), until the outstanding Certificate
Balance of the Class P Certificates has been reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class P
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class P Certificates, but not previously
reimbursed, have been reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class Q Certificates
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(l) fiftieth, after the Certificate Balances of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
Class A-J Certificates, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates,
Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates and Class P Certificates have been reduced to
zero, to the Holders of the Class Q Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates,
Class H Certificates, Class J Certificates, Class K Certificates,
Class L Certificates, Class M Certificates, Class N Certificates and
Class P Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class Q Certificates has been
reduced to zero;
(li) fifty-first, to the Holders of the Class Q Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class Q Certificates, but not previously reimbursed, have
been reimbursed in full;
(lii) fifty-second, to the Holders of the Class T Certificates
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(liii) fifty-third, after the Certificate Balances of the
Class A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates, Class P Certificates and Class Q
Certificates have been reduced to zero, to the Holders of the Class
T Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates, Class A-M Certificates, Class A-MFL Regular Interest,
Class A-J Certificates, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates,
Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class P Certificates and Class Q Certificates
on such Distribution Date), until the outstanding Certificate
Balance of the Class T Certificates has been reduced to zero;
(liv) fifty-fourth, to the Holders of the Class T
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class T Certificates, but not previously
reimbursed, have been reimbursed in full;
(lv) fifty-fifth, to the Holders of the Class NR Certificates
in respect of interest, up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date;
(lvi) fifty-sixth, after the Certificate Balances of the Class
A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates, Class P Certificates, Class Q
Certificates and Class T Certificates have been reduced to zero, to
the Holders of the Class NR Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-MFL Regular Interest, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates,
Class H Certificates, Class J Certificates, Class K Certificates,
Class L Certificates, Class M Certificates, Class N Certificates,
Class P Certificates, Class Q Certificates and Class T Certificates
on such Distribution Date), until the outstanding Certificate
Balance of the Class NR Certificates has been reduced to zero;
(lvii) fifty-seventh, to the Holders of the Class NR
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class NR Certificates, but not
previously reimbursed, have been reimbursed in full; and
(lviii) fifty-eighth, to the Holders of the Class R
Certificates, the amount, if any, of the Available Distribution
Amount remaining in the Upper-Tier Distribution Account with respect
to such Distribution Date.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, the Master Servicer shall promptly notify the Paying
Agent and the Paying Agent will use commercially reasonable efforts to cause DTC
to make the revised distribution on a timely basis on such Distribution Date.
None of the Master Servicer, the Special Servicer or the Paying Agent shall be
liable or held responsible for any resulting delay in the making of such
distribution to Certificateholders solely on the basis of the actions described
in the preceding sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a), 4.01(c)
and 4.01(d) (in the case of (i) the Class A-1A Certificates, first, to the Class
LA-1A-1 Uncertificated Interest, second to the Class LA-1A-2 Uncertificated
Interest, third, to the Class LA-1A-3 Uncertificated Interest, fourth, to the
Class LA-1A-4 Uncertificated Interest, fifth, to the Class LA-1A-5
Uncertificated Interest, sixth, to the Class LA-1A-6 Uncertificated Interest,
seventh, to the Class LA-1A-7 Uncertificated Interest, eighth, to the Class
LA-1A-8 Uncertificated Interest, ninth, to the Class LA-1A-9 Uncertificated
Interest, tenth, to the Class LA-1A-10 Uncertificated Interest, eleventh, to the
Class LA-1A-11 Uncertificated Interest, twelfth, to the Class LA-1A-12
Uncertificated Interest, thirteenth, to the Class LA-1A-13 Uncertificated
Interest, fourteenth, to the Class LA-1A-14 Uncertificated Interest, and
fifteenth, to the Class LA-1A-15 Uncertificated Interest, in each case, until
reduced to zero, (ii) the Class A-2 Certificates, first, to the Class LA-2-1
Uncertificated Interest, second, to the Class LA-2-2 Uncertificated Interest and
third, to the Class LA-2-3 Uncertificated Interest, in each case, until reduced
to zero, (iii) the Class A-3 Certificates, first, to the Class LA-3-1
Uncertificated Interest, second, to the Class LA-3-2 Uncertificated Interest,
third, to the Class LA-3-3 Uncertificated Interest, fourth, to the Class LA-3-4
Uncertificated Interest and fifth, to the Class LA-3-5 Uncertificated Interest,
in each case, until reduced to zero, (iv) the Class A-4 Certificates, first, to
the Class LA-4-1 Uncertificated Interest, second, to the Class LA-4-2
Uncertificated Interest, third, to the Class LA-4-3 Uncertificated Interest,
fourth, to the Class LA-4-4 Uncertificated Interest, fifth, to the Class LA-4-5
Uncertificated Interest, sixth, to the Class LA-4-6 Uncertificated Interest,
seventh, to the Class LA-4-7 Uncertificated Interest, eighth, to the Class
LA-4-8 Uncertificated Interest and ninth, to the Class LA-4-9 Uncertificated
Interest, in each case, until reduced to zero, (v) the Class A-SB Certificates,
first, to the Class LA-SB-1 Uncertificated Interest, second, to the Class
LA-SB-2 Uncertificated Interest, third, to the Class LA-SB-3 Uncertificated
Interest, fourth, to the Class LA-SB-4 Uncertificated Interest, fifth, to the
Class LA-SB-5 Uncertificated Interest, sixth, to the Class LA-SB-6
Uncertificated Interest, and seventh, to the Class LA-LB-7 Uncertificated
Interest, in each case, until reduced to zero, (vi) the Class E Certificates,
first, to the Class LE-1 Uncertificated Interest, and second, to the Class LE-2
Uncertificated Interest, in each case, until reduced to zero, (vii) the Class F
Certificates, first, to the Class LF-1 Uncertificated Interest and second, to
the Class LF-2 Uncertificated Interest, in each case, until reduced to zero,
(viii) the Class G Certificates, first, to the Class LG-1 Uncertificated
Interest, second, to the Class LG-2 Uncertificated Interest and third, to the
Class LG-3 Uncertificated Interest, in each case, until reduced to zero, (ix)
the Class H Certificates, first, to the Class LH-1 Uncertificated Interest and
second, to the Class LH-2 Uncertificated Interest, in each case, until reduced
to zero, (x) the Class J Certificates, first, to the Class LJ-1 Uncertificated
Interest, second, to the Class LJ-2 Uncertificated Interest and third, to the
Class LJ-3 Uncertificated Interest, in each case, until reduced to zero, (xi)
the Class K Certificates, first, to the Class LK-1 Uncertificated Interest, and
second, to the Class LK-2 Uncertificated Interest, in each case, until reduced
to zero, (xii) the Class L Certificates, first, to the Class LL-1 Uncertificated
Interest, and second, to the Class LL-2 Uncertificated Interest, in each case,
until reduced to zero, (xiii) the Class M Certificates, first, to the Class LM-1
Uncertificated Interest, and second, to the Class LM-2 Uncertificated Interest,
in each case, until reduced to zero, (xiv) the Class P Certificates, first, to
the Class LP-1 Uncertificated Interest, and second, to the Class LP-2
Uncertificated Interest, in each case, until reduced to zero, (xv) the Class NR
Certificates, first, to the Class LNR-1 Uncertificated Interest, second, to the
Class LNR-2 Uncertificated Interest and third, to the Class LNR-3 Uncertificated
Interest, in each case, until reduced to zero.
On each Distribution Date, each Uncertificated Lower-Tier Interest
shall be deemed to receive distributions in respect of interest in an amount
equal to the Interest Distribution Amount in respect of its Related Certificates
(in the case of each of (i) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3,
Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14 and Class LA-1A-15 Uncertificated Interests, (ii) the Class LA-2-1,
Class LA-2-2 and Class LA-2-3 Uncertificated Interests, (iii) the Class LA-3-1,
Class LA-3-2, Class LA-3-3, Class LA-3-4 and Class LA-3-5 Uncertificated
Interests, (iv) the Class LA-4-1, Class LA-4-2, Class LA-4-3, Class LA-4-4,
Class LA-4-5, Class LA-4-6, Class LA-4-7, Class LA-4-8 and Class LA-4-9
Uncertificated Interests, (v) the Class LA-SB-1, Class LA-SB-2, Class LA-SB-3,
Class LA-SB-4, Class LA-SB-5, Class LA-SB-6 and Class LA-SB-7 Uncertificated
Interests, (vi) the Class LE-1 and Class LE-2 Uncertificated Interests, (vii)
the Class LF-1 and Class LF-2 Uncertificated Interests, (viii) the Class LG-1,
Class LG-2 and Class LG-3 Uncertificated Interests, (ix) the Class LH-1 and
Class LH-2 Uncertificated Interests, (x) the Class LJ-1, Class LJ-2 and Class
LJ-3 Uncertificated Interests, (xi) the Class LK-1 and Class LK-2 Uncertificated
Interests, (xii) the Class LL-1 and Class LL-2 Uncertificated Interests, (xiii)
the Class LM-1 and Class LM-2 Uncertificated Interests, (xiv) the Class LP-1 and
Class LP-2 Uncertificated Interests, (xv) the Class LNR-1, Class LNR-2 and Class
LNR-3 Uncertificated Interests, pro rata, based on their respective Certificate
Balances) and its related Component of the Class X-1 Certificates and Class X-2
Certificates, in each case to the extent actually distributable thereon as
provided in Section 4.01(a). For this purpose, interest distributed on the Class
X-1 Certificates and Class X-2 Certificates shall be treated as having been paid
to their respective Components pro rata, based on the interest accrued with
respect thereto at its Class X-1 Strip Rate or Class X-2 Strip Rate. Such
amounts distributed to the Uncertificated Lower-Tier Interests in respect of
principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount," and shall be made
by the Paying Agent by deeming such Lower-Tier Distribution Amount to be
deposited in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto (in the case of the aggregate of (i) the Class LA-1A-1,
Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7 and Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class
LA-1A-12, Class LA-1A-13, Class LA-1A-14 and Class LA-1A-15 Uncertificated
Interests, the Class A-1A Certificates, (ii) the Class LA-2-1, Class LA-2-2 and
Class LA-2-3 Uncertificated Interests, the Class A-2 Certificates, (iii) the
Class LA-3-1, Class LA-3-2, Class LA-3-3, Class LA-3-4 and Class LA-3-5
Uncertificated Interests, the Class A-3 Certificates, (iv) the Class LA-4-1,
Class LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-4-5, Class LA-4-6, Class
LA-4-7 , Class LA-4-8, Class LA-4-9 Uncertificated Interests, the Class A-4
Certificates, (v) the Class LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class
LA-SB-4, Class LA-SB-5, Class LA-SB-6 and Class LA-SB-7 Uncertificated
Interests, the Class A-SB Certificates, (vi) the Class LE-1 and Class LE-2
Uncertificated Interests, the Class E Certificates, (vii) the Class LF-1 and
Class LF-2 Uncertificated Interests, the Class F Certificates, (viii) the Class
LG-1, Class LG-2 and Class LG-3 Uncertificated Interests, the Class G
Certificates, (ix) the Class LH-1 and Class LH-2 Uncertificated Interests, the
Class H Certificates, (x) the Class LJ-1, Class LJ-2 and Class LJ-3
Uncertificated Interests, the Class J Certificates, (xi) the Class LK-1 and
Class LK-2 Uncertificated Interests, the Class K Certificates, (xii) the Class
LL-1 and Class LL-2 Uncertificated Interests, the Class L Certificates, (xiii)
the Class LM-1 and Class LM-2 Uncertificated Interests, the Class M
Certificates, (xiv) the Class LP-1 and Class LP-2 Uncertificated Interests, the
Class P Certificates and (xv) the Class LNR-1, Class LNR-2 and Class LNR-3
Uncertificated Interests, the Class NR Certificates), as adjusted for the
allocation of Collateral Support Deficits, as provided in Sections 4.04(b) and
4.04(c) and of Certificate Deferred Interest as provided in Section 4.06. The
initial principal balance of each Uncertificated Lower-Tier Interest equals the
respective Original Lower-Tier Principal Amount. The pass through rate with
respect to each Uncertificated Lower-Tier Interest will be the rate per annum
set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and distribution of Yield Maintenance Charges pursuant to Section 4.01(d)(iii)
shall be distributed to the Holders of the Class LR Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-SB, and Class A-1A Certificates without
regard to Loan Group, based on their respective Certificate Balances immediately
prior to such Distribution Date, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero,
and any amounts representing reimbursements of Collateral Support Deficits
previously allocated to such Classes, if available, will be distributed pro rata
based on their respective Certificate Balances, without regard to Loan Group.
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Paying Agent to the following Classes: to the
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class
A-4 Certificates, Class A-SB Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-MFL Regular Interest, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates with respect to the related Loan Group (if
applicable, in the case of the Class A-1, Class A-2, Class A-3, Class A-4, Class
A-SB and Class A-1A Certificates) on each Distribution Date, in an amount equal
to the product of (a) a fraction whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator is the
total amount distributed as principal to the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates, Class A-1A Certificates, Class A-M Certificates, Class A-MFL
Regular Interest, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class P Certificates, Class Q Certificates, Class T Certificates and Class NR
Certificates on such Distribution Date, (b) the Base Interest Fraction for the
related principal payment on such Class of Certificates or the Class A-MFL
Regular Interest, and (c) the aggregate amount of Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected on such principal
prepayments during the related Due Period. If more than one such Class of
Certificates is entitled to distributions of principal with respect to the
related Loan Group on any particular Distribution Date on which Yield
Maintenance Charges are distributable, the aggregate amount of such Yield
Maintenance Charges will be allocated among all such Classes up to, and on a pro
rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge collected
during the related Due Period remaining after such distributions will be
distributed to the holders of the Class X Certificates. Notwithstanding the
foregoing, any prepayment penalties collected that are based on a percentage of
the amount being prepaid will be distributed to the Class X Certificates.
(ii) No Yield Maintenance Charge will be distributed to the
holders of the Class L, Class M, Class N, Class P, Class Q, Class T,
Class NR or Residual Certificates. After the Certificate Balances of
the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-SB Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-MFL Regular
Interest, 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 have
been reduced to zero, all Yield Maintenance Charges with respect to
the Mortgage Loans shall be distributed to the holders of the Class
X Certificates.
(iii) All distributions of Yield Maintenance Charges made in
respect of the respective Classes of Regular Certificates and the
Class A-MFL Regular Interest on each Distribution Date pursuant to
Section 4.01(d)(i) shall first be deemed to be distributed from the
Lower-Tier REMIC to the Upper-Tier REMIC in respect of the
Uncertificated Lower-Tier Interests, pro rata based upon the amount
of principal distributed in respect of each such Class of
Uncertificated Lower-Tier Interests for such Distribution Date
pursuant to Section 4.01(b) above.
(iv) Any distributions of Yield Maintenance Charges in respect
of the Class A-MFL Regular Interest shall be distributed to the
Holders of the Class A-MFL Certificates or to the Swap Counterparty
as specified in Section 4.01(k).
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account (other than amounts with respect
to a Non-Serviced Mortgage Loan) and shall distribute such amounts to reimburse
the Holders of the Regular Certificates (other than the Class A-MFL
Certificates) and the Class A-MFL Regular Interest (in order of distribution
priority) (first deeming such amounts to be distributed with respect to the
Related Uncertificated Lower-Tier Interests) up to an amount equal to all
Collateral Support Deficits, if any, previously deemed allocated to them and
unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account will not
reduce the Certificate Balances of the Classes of Certificates or the Class
A-MFL Regular Interest receiving such distributions. Any amounts remaining in
the Gain-on-Sale Reserve Account after such distributions shall be applied to
offset future Collateral Support Deficits and related Collateral Support
Deficits and upon termination of the Trust Fund, any amounts remaining in the
Gain-on-Sale Reserve Account shall be distributed to the Class LR
Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to such Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Master Servicer, the
Special Servicer or the Underwriters shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates (other than the Class A-MFL
Certificates) or the Class A-MFL Regular Interest shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(e), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 12.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) [Reserved].
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, the Companion Paying Agent shall make
withdrawals and payments from the Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05, to
the extent any such amounts relate solely to the Serviced Whole Loan
related to such Companion Loan, and such amounts are to be paid by the
related Companion Holder pursuant to the related Intercreditor Agreement;
(ii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Companion Distribution Account not required to be
deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
(k) (i) On each Distribution Date, for so long as the Certificate
Balance of the Class A-MFL Regular Interest (and correspondingly, the Class
A-MFL Certificates) has not been reduced to zero, to the extent of the Class
A-MFL Available Funds for such Distribution Date, after remitting any Class
A-MFL Net Swap Payment to the Swap Counterparty pursuant to Section 3.32(c), the
Paying Agent shall make distributions from the Floating Rate Account in the
following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(A) first, to the Holders of the Class A-MFL Certificates, in
respect of interest, up to an amount equal to the sum of (i) the
Class A-MFL Interest Distribution Amount for such Distribution Date
and (ii) an amount equal to any Accrued Interest From Recoveries
relating to the Class A-MFL Regular Interest;
(B) second, to the Holders of the Class A-MFL Certificates, in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-MFL Principal Distribution Amount, until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-MFL Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class A-MFL Certificates (as a result of the allocation of
Collateral Support Deficit to the Class A-MFL Regular Interest) but
not previously reimbursed, has been reimbursed in full;
(D) fourth, to pay (1) any costs and expenses related to the
Swap Contract and (2) any termination payments to the Swap
Counterparty, in that order and solely to the extent provided
herein, including Section 4.01(k)(iii); and
(E) fifth, any remaining amount to the Holders of the Class
A-MFL Certificates.
(ii) So long as a Class A-MFL Distribution Conversion is not in
effect, any Yield Maintenance Charges paid on the Class A-MFL Regular
Interest shall be payable to the Swap Counterparty pursuant to the terms
of the Swap Contract on a net basis as part of the Class A-MFL Net Swap
Payment as specified in Section 3.32. On each Distribution Date for which
a Class A-MFL Distribution Conversion is in effect, any Yield Maintenance
Charges paid on the Class A-MFL Regular Interest shall be distributed to
the Holders of the Class A-MFL Certificates.
(iii) Any termination payments due to the Swap Counterparty under
the Swap Contract shall be payable solely from amounts, if any, remaining
in the Floating Rate Account after all other amounts have been paid under
the Class A-MFL Certificates (including all principal and interest amounts
outstanding and reimbursement of any Collateral Support Deficit).
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s; Grant of Power of Attorney. (a) On each Distribution
Date, the Paying Agent shall make available to the general public a statement
(substantially in the form set forth as Exhibit G hereto and based on the
information supplied to the Paying Agent in the related CMSA Investor Reporting
Package (IRP) in accordance with CMSA guidelines) as to the distributions made
on such Distribution Date (each, a "Statement to Certificateholders") which
shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest, with respect to the Class A-MFL Certificates,
notification that the amount of interest distributed thereon is equal to
the Interest Distribution Amount with respect to the Class A-MFL Regular
Interest, which is being paid as a result of a Class A-MFL Distribution
Conversion;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of P&I Advances as of the P&I
Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Paying Agent and servicing compensation paid to the Master Servicer
and the Special Servicer with respect to the Due Period for such
Determination Date together with detailed calculations of servicing
compensation paid to Master Servicer and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days to 119 days (and for each 30 day period thereafter until
liquidation), (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Yield Maintenance
Charges;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee since the previous Determination Date (or
in the case of the first Distribution Date, as of the Cut-off Date), with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxiii) LIBOR as calculated for the related Distribution Date and
the next succeeding Distribution Date;
(xxxiv) the amounts received and paid in respect of the Swap
Contract;
(xxxv) identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately
preceding calendar month with respect to the Swap Contract;
(xxxvi) the amount of any (A) payment by the Swap Counterparty as a
termination payment, (B) payments in connection with the acquisition of a
replacement interest rate swap contract, and (C) collateral posted in
connection with any Rating Agency Trigger Event;
(xxxvii) the amount of, and identification of, any payments on the
Class A-MFL Certificates in addition to the amount of principal and
interest due thereon (including without limitation, any termination
payment received in connection with the Swap Contract);
(xxxviii) a loan-by-loan listing of any material modification,
extension or waiver of a Mortgage Loan; and
(xxxix) a loan-by-loan listing of any material breach of the
representations and warranties given with respect to a Mortgage Loan by
the applicable Mortgage Loan Seller.
In the case of information furnished pursuant to clauses (i), (ii),
(x), (xi), (xxxiv) and (xxxvii) above, the amounts shall be expressed as a
dollar amount in the aggregate for all Certificates of each applicable Class and
per Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
the general public via its website initially located at "xxx.xxxxxxx.xxx" (i)
the related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement. In
addition, if the Depositor so directs the Paying Agent, and on terms acceptable
to the Paying Agent, the Paying Agent shall make certain other information and
reports related to the Mortgage Loans available through its internet website.
The Paying Agent shall make available to the Companion Holders all
reports via its internet website that the Paying Agent has made available to
Certificateholders under this Agreement.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" and the CMSA Operating Statement Analysis Report and CMSA NOI Adjusted
Worksheets and seven CMSA data files, the Realized Loss Report and CMSA Advance
Recovery Report to the extent delivered by the Master Servicer pursuant to this
Agreement and the Trustee's Exception Report as updated from time to time to the
extent delivered to the Paying Agent.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
internet website can be directed to the Paying Agent's CMBS customer service
desk at (000) 000-0000.
Each of the Master Servicer and the Special Servicer may, at its
sole cost and expense, make available by electronic media, bulletin board
service or internet website (in addition to making information available as
provided herein) any reports or other information the Master Servicer or the
Special Servicer, as applicable, is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder (which may be a licensed or registered investment
advisor) to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law. Notwithstanding
this paragraph, the availability of such information or reports on the internet
or similar electronic media shall not be deemed to satisfy any specific delivery
requirements in this Agreement except as set forth herein. In connection with
providing access to the Master Servicer's or the Special Servicer's internet
website, the Master Servicer or the Special Servicer, as applicable, shall take
reasonable measures to ensure that only such parties listed above may access
such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. The Master Servicer or
the Special Servicer, as applicable, shall not be liable for dissemination of
this information in accordance with this Agreement, provided that such
information otherwise meets the requirements set forth herein with respect to
the form and substance of such information or reports. The Master Servicer shall
be entitled to attach to any report provided pursuant to this subsection, any
reasonable disclaimer with respect to information provided, or any assumptions
required to be made by such report. Notwithstanding anything herein to the
contrary, the Master Servicer or the Special Servicer may, at its sole cost and
expense, make available by electronic media, bulletin board service or internet
website any reports or other information the Master Servicer or the Special
Servicer, as applicable, is required or permitted to provide to any Mortgagor
with respect to such Mortgagor's Mortgage Loan to the extent such action does
not conflict with the terms of this Agreement, the terms of the Mortgage Loans
or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Mortgage Loans and REO Properties as may be necessary for the Master
Servicer to prepare each report and any supplemental information to be provided
by the Master Servicer to the Paying Agent. Neither the Paying Agent nor the
Depositor shall have any obligation to recompute, verify or recalculate the
information provided thereto by the Master Servicer. Unless the Paying Agent has
actual knowledge that any report or file received from the Master Servicer
contains erroneous information, the Paying Agent is authorized to rely thereon
in calculating and making distributions to Certificateholders in accordance with
Section 4.01, preparing the statements to Certificateholders required by Section
4.02(a) and allocating Collateral Support Deficit to the Certificates in
accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. The Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the Master Servicer shall either (i) remit to
the Paying Agent for deposit into the Lower-Tier Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account, for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Certificate
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Certificate Account on or before the next
succeeding P&I Advance Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). The Master Servicer shall notify
the Paying Agent of (i) the aggregate amount of P&I Advances for a Distribution
Date and (ii) the amount of any Nonrecoverable P&I Advances for such
Distribution Date, on or before 2 Business Days prior to such Distribution Date.
If the Master Servicer fails to make a required P&I Advance by 4:00 p.m., New
York City time, on any P&I Advance Date, the Trustee shall make such P&I Advance
pursuant to Section 7.05 by noon, New York City time, on the related
Distribution Date, unless the Master Servicer shall have cured such failure (and
provided written notice of such cure to the Trustee and the Paying Agent) by
11:00 a.m. on such Distribution Date. In the event that the Master Servicer
fails to make a required P&I Advance hereunder, the Paying Agent shall notify
the Trustee of such circumstances by 4:30 p.m. (New York City time) on the
related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by the Master Servicer with respect to any Distribution Date
and each Mortgage Loan shall be equal to: (i) the Monthly Payments (net of
related Servicing Fees, and in the case of each Non-Serviced Mortgage Loan, the
applicable servicing fees payable under this Agreement) other than Balloon
Payments, that were due during the related Due Period and delinquent as of the
close of business on the Business Day preceding the related P&I Advance Date (or
not advanced by any Sub-Servicer on behalf of the Master Servicer) and (ii) with
respect to each Mortgage Loan as to which the related Balloon Payment was due
during or prior to the related Due Period and was delinquent as of the end of
the related Due Period (including any REO Loan as to which the Balloon Payment
would have been past due), an amount equal to the Assumed Scheduled Payment
therefor. Subject to subsection (c) below, the obligation of the Master Servicer
to make such P&I Advances is mandatory, and with respect to any Mortgage Loan or
REO Loan, shall continue until the Distribution Date on which the proceeds, if
any, received in connection with a Liquidation Event or the disposition of the
REO Property, as the case may be, with respect thereto are to be distributed. No
P&I Advances shall be made with respect to a Companion Loan.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. With respect to each Non-Serviced
Mortgage Loan, the Master Servicer will be required to make its determination
that it has made a P&I Advance on such Non-Serviced Mortgage Loan that is a
Nonrecoverable Advance or that any proposed P&I Advance would, if made,
constitute a Nonrecoverable Advance with respect to such Non-Serviced Mortgage
Loan independently of any determination made by the applicable Non-Serviced
Master Servicer or the applicable Non-Serviced Special Servicer, as the case may
be, under the applicable Non-Serviced Pooling Agreement in respect of the
related Non-Serviced Companion Loan. If the Master Servicer or Special Servicer
determines that a proposed P&I Advance with respect to a Non-Serviced Mortgage
Loan, if made, or any outstanding P&I Advance with respect to a Non-Serviced
Note previously made, would be, or is, as applicable, a Nonrecoverable Advance,
the Master Servicer shall provide the applicable Non-Serviced Master Servicer,
written notice of such determination within one Business Day of the date of such
determination. If the Master Servicer receives written notice from the related
Non-Serviced Master Servicer or the related Non-Serviced Special Servicer, as
the case may be, that it has determined, by making a determination of
non-recoverability under the applicable Non-Serviced Pooling Agreement, with
respect to a Non-Serviced Companion Loan, that any proposed advance under the
applicable Non-Serviced Pooling Agreement that is similar to a P&I Advance would
be, or any outstanding advance under such Non-Serviced Pooling Agreement that is
similar to a P&I Advance is, a nonrecoverable advance, then the Master Servicer
or the Trustee, may, based upon such determination by the related Non-Serviced
Master Servicer or the related Non-Serviced Special Servicer, as the case may
be, determine that any P&I Advance previously made or proposed to be made with
respect to the related Non-Serviced Note, will be a Nonrecoverable P&I Advance,
and thereafter shall not be required to make any additional P&I Advances with
respect to the related Non-Serviced Note unless and until the Master Servicer or
the Trustee, as the case may be, determines that any such additional P&I
Advances with respect to the related Non-Serviced Note would not be a
Nonrecoverable P&I Advance, which determination may be as a result of
consultation with the related Non-Serviced Master Servicer or the related
Non-Serviced Special Servicer, as the case may be, or otherwise. For the
avoidance of doubt, the Master Servicer or the Trustee, as the case may be,
shall have the sole 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.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account, pursuant to Section 3.05(a), the Master Servicer shall be
entitled to pay the Trustee and itself (in that order of priority) as the case
may be out of any amounts then on deposit in the Certificate Account (but in no
event from any funds payable or allocable to a Serviced Companion Noteholder),
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of such P&I Advance from the date made to but not including the date of
reimbursement; provided, however, that no interest will accrue on any P&I
Advance (i) made with respect to a Mortgage Loan until after the related Due
Date has passed and any applicable grace period has expired or (ii) if the
related Monthly Payment is received after the Determination Date but on or prior
to the related P&I Advance Date. The Master Servicer shall reimburse itself
and/or the Trustee, as the case may be, for any outstanding P&I Advance, subject
to Section 3.19 of this Agreement, as soon as practicably possible after funds
available for such purpose are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Master Servicer
nor the Trustee shall make an advance for Yield Maintenance Charges, Default
Interest or Penalty Charges and (ii) if an Appraisal Reduction has been made
with respect to any Mortgage Loan then in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Mortgage
Loan for the related Distribution Date shall be reduced (it being herein
acknowledged that there shall be no reduction in the principal portion of such
P&I Advance) to equal the product of (x) the amount of the interest portion of
such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicer or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
(g) None of the Master Servicer, the Paying Agent or the Trustee
shall advance any amount due to be paid by the Swap Counterparty for
distribution to the Class A-MFL Certificates.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Paying Agent shall calculate the amount,
if any, by which (i) the aggregate Stated Principal Balance (for purposes of
this calculation only, not giving effect to any reductions of the Stated
Principal Balance for payments of principal collected on the Mortgage Loans that
were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to
Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are
not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans
and any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates (other than the Class A-MFL Certificates) and the Class
A-MFL Regular Interest after giving effect to distributions of principal on such
Distribution Date and the allocation of Certificate Deferred Interest pursuant
to Section 4.06 (any such deficit, the "Collateral Support Deficit"). Any
allocation of Collateral Support Deficit to a Class of Regular Certificates
(other than the Class A-MFL Certificates) and the Class A-MFL Regular Interest
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to the Class A-MFL Regular
Interest shall result in a corresponding reduction of the Certificate Balance of
the Class A-MFL Certificates. Any Collateral Support Deficit allocated to a
Class of Regular Certificates (or, in the case of the Class A-MFL Certificates,
an amount corresponding to any Collateral Support Deficit allocated to the Class
A-MFL Regular Interest, as applicable) shall be allocated among the respective
Certificates of such Class in proportion to the Percentage Interests evidenced
thereby. The allocation of Collateral Support Deficit shall constitute an
allocation of losses and other shortfalls experienced by the Trust Fund.
Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates
(or, in the case of the Class A-MFL Certificates, an amount corresponding to any
Collateral Support Deficit allocated to the Class A-MFL Regular Interest) in
respect of which any such reimbursement is made. To the extent any
Nonrecoverable Advances (plus interest thereon) that were reimbursed from
principal collections on the Mortgage Loans and previously resulted in a
reduction of the Principal Distribution Amount, Loan Group 1 Principal
Distribution Amount or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
or Class A-MFL Regular Interest that previously were allocated Collateral
Support Deficit, in sequential order, in each case up to the amount of the
unreimbursed Collateral Support Deficit allocated to such Class of Certificates
or Class A-MFL Regular Interest. If the Certificate Balance of any Class of
Certificates or Class A-MFL Regular Interest is so increased, the amount of
unreimbursed Collateral Support Deficit of such Class of Certificates or Class
A-MFL Regular Interest shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates (other than the Class A-MFL Certificates) and the Class
A-MFL Regular Interest will be reduced without distribution, as a write-off to
the extent of any Collateral Support Deficit, if any, allocable to such
Certificates or the Class A-MFL Regular Interest, as applicable, with respect to
such Distribution Date. Any such write off shall be allocated first, to the
Class NR Certificates; second, to the Class T Certificates, third, to the Class
Q Certificates, fourth, to the Class P Certificates, fifth, to the Class N
Certificates, sixth, to the Class M Certificates, seventh, to the Class L
Certificates, eighth, to the Class K Certificates, ninth, to the Class J
Certificates, tenth, to the Class H Certificates, eleventh, to the Class G
Certificates, twelfth, to the Class F Certificates, thirteenth, to the Class E
Certificates, fourteenth, to the Class D Certificates, fifteenth, to the Class C
Certificates, sixteenth, to the Class B Certificates, seventeenth, to the Class
A-J Certificates, eighteenth, to the Class A-M Certificates and Class A-MFL
Regular Interest, pro rata, and nineteenth to the Class A-1 Certificates, Class
A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates and Class A-1A Certificates, pro rata (based upon their respective
Certificate Balances and without regard to Loan Groups), until the remaining
Certificate Balances of such Classes of Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates (other than the Class A-MFL, Class
X, Class R and Class LR Certificates) or the Class A-MFL Regular Interest
pursuant to Section 4.04(a) or Section 4.04(b), respectively, with respect to
such Distribution Date shall reduce the Lower-Tier Principal Amount of the
Related Uncertificated Lower-Tier Interests with respect thereto as a write-off
(in the case of (i) the Class A-1A Certificates, first, to the Class LA-1A-1
Uncertificated Interest, second, to the Class LA-1A-2 Uncertificated Interest,
third, to the Class LA-1A-3 Uncertificated Interest, fourth, to the Class
LA-1A-4 Uncertificated Interest, fifth, to the Class LA-1A-5 Uncertificated
Interest, sixth, to the Class LA-1A-6 Uncertificated Interest, seventh, to the
Class LA-1A-7 Uncertificated Interest, eighth, to the Class LA-1A-8
Uncertificated Interest, ninth, to the Class LA-1A-9 Uncertificated Interest,
tenth, to the Class LA-1A-10 Uncertificated Interest, eleventh, to the Class
LA-1A-11 Uncertificated Interest, twelfth, to the Class LA-1A-12 Uncertificated
Interest, thirteenth, to the Class LA-1A-13 Uncertificated Interest, fourteenth,
to the Class LA-1A-14 Uncertificated Interest, and fifteenth, to the Class
LA-1A-15 Uncertificated Interest, in each case, until reduced to zero, (ii) the
Class A-2 Certificates, first, to the Class LA-2-1 Uncertificated Interest,
second, to the Class LA-2-2 Uncertificated Interest and third, to the Class
LA-2-3 Uncertificated Interest, in each case, until reduced to zero, (iii) the
Class A-3 Certificates, first, to the Class LA-3-1 Uncertificated Interest,
second, to the Class LA-3-2 Uncertificated Interest, third, to the Class LA-3-3
Uncertificated Interest, and fourth, to the Class LA-3-4 Uncertificated
Interest, fifth, to the Class LA-3-5 Uncertificated Interest, in each case,
until reduced to zero, (iv) the Class A-4 Certificates, first, to the Class
LA-4-1 Uncertificated Interest, second, to the Class LA-4-2 Uncertificated
Interest, third, to the Class LA-4-3 Uncertificated Interest, fourth, to the
Class LA-4-4 Uncertificated Interest, fifth, to the Class LA-4-5 Uncertificated
Interest, sixth, to the Class LA-4-6 Uncertificated Interest, seventh, to the
Class LA-4-7 Uncertificated Interest, eighth, to the Class LA-4-8 Uncertificated
Interest, ninth, to the Class LA-4-9 Uncertificated Interest, in each case,
until reduced to zero, (v) the Class A-SB Certificates, first, to the Class
LA-SB-1 Uncertificated Interest, second, to the Class LA-SB-2 Uncertificated
Interest, third, to the Class LA-SB-3 Uncertificated Interest, fourth, to the
Class LA-SB-4 Uncertificated Interest, fifth, to the Class LA-SB-5
Uncertificated Interest, sixth, to the Class LA-SB-6 Uncertificated Interest,
and seventh, to the Class LA-SB-7 Uncertificated Interest, in each case, until
reduced to zero, (vi) the Class E Certificates, first, to the Class LE-1
Uncertificated Interest and second, to the Class LE-2 Uncertificated Interest,
in each case, until reduced to zero, (vii) the Class F Certificates, first, to
the Class LF-1 Uncertificated Interest and second, to the Class LF-2
Uncertificated Interest, in each case, until reduced to zero, (viii) the Class G
Certificates, first, to the Class LG-1 Uncertificated Interest, second, to the
Class LG-2 Uncertificated Interest and third, to the Class LG-3 Uncertificated
Interest, in each case, until reduced to zero, (ix) the Class H Certificates,
first, to the Class LH-1 Uncertificated Interest and second, to the Class LH-2
Uncertificated Interest, in each case, until reduced to zero, (x) the Class J
Certificates, first, to the Class LJ-1 Uncertificated Interest, second, to the
Class LJ-2 Uncertificated Interest and third, second, to the Class LJ-3
Uncertificated Interest, in each case, until reduced to zero, (xi) the Class K
Certificates, first, to the Class LK-1 Uncertificated Interest and second, to
the Class LK-2 Uncertificated Interest, in each case, until reduced to zero,
(xii) the Class L Certificates, first, to the Class LL-1 Uncertificated Interest
and second, to the Class LL-2 Uncertificated Interest, in each case, until
reduced to zero, (xiii) the Class M Certificates, first, to the Class LM-1
Uncertificated Interest and second, to the Class LM-2 Uncertificated Interest,
in each case, until reduced to zero, (xiv) the Class P Certificates, first, to
the Class LP-1 Uncertificated Interest and second, to the Class LP-2
Uncertificated Interest, in each case, until reduced to zero, and (xv) the Class
NR Certificates, first, to the Class LNR-1 Uncertificated Interest, second, to
the Class LNR-2 Uncertificated Interest and third, to the Class LNR-3
Uncertificated Interest, in each case, until reduced to zero).
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Paying Agent on each Distribution Date, only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, to the Certificate Balance of the Class NR, Class T, Class Q,
Class P, 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 Certificates and the Class A-MFL
Regular Interest (and correspondingly to the Class A-MFL Certificates) and the
Class A-M Certificates, pro rata, in that order, up to the amount of their
respective Certificate Balances. On any Distribution Date, an Appraisal
Reduction that otherwise would be allocated to a Class of Certificates will be
allocated to the next most subordinate Class to the extent that the Certificate
Balance on such Distribution Date for such Class of Certificates (prior to
taking the Appraisal Reduction into account) is less than the Appraisal
Reduction for such Distribution Date.
With respect to any AB Mortgage Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of such AB
Mortgage Loan and the related Companion Loan. Any resulting Appraisal Reductions
with respect to any AB Mortgage Loan will be allocated to the related Companion
Loan up to the principal amount of such Companion Loan prior to being allocated
to the AB Mortgage Loan.
With respect to a Serviced Whole Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of the related
Serviced Mortgage Loan and the related Serviced Companion Loans. Any Appraisal
Reduction will be allocated in accordance with the related Intercreditor
Agreement, first, to the related Serviced Subordinate Companion Loan, if
applicable, and, second, to the related Serviced Mortgage Loan and each Serviced
Pari Passu Companion Loan, pro rata, according to their respective Stated
Principal Balances.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Regular Certificates
(other than the Class A-MFL and Class X Certificates) and the Class A-MFL
Regular Interest shall be reduced by an amount equal to the amount of Mortgage
Deferred Interest for all Mortgage Loans for the Due Dates occurring in the
related Due Period allocated to such Class of Certificates or the Class A-MFL
Regular Interest, as applicable, such Mortgage Deferred Interest to be allocated
first, to the Class NR Certificates, second, to the Class T Certificates, third,
to the Class Q Certificates, fourth, to the Class P Certificates, fifth, to the
Class N Certificates, sixth, to the Class M Certificates, seventh, to the Class
L Certificates, eighth, to the Class K Certificates, ninth, to the Class J
Certificates, tenth, to the Class H Certificates, eleventh, to the Class G
Certificates, twelfth, to the Class F Certificates, thirteenth, to the Class E
Certificates, fourteenth, to the Class D Certificates, fifteenth, to the Class C
Certificates, sixteenth, to the Class B Certificates, seventeenth, to the Class
A-J Certificates, eighteenth, to the Class A-MFL Regular Interest and the Class
A-M Certificates, pro rata, and then pro rata (based upon Accrued Certificate
Interest) to the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB and
Class A-1A Certificates, in each case up to the respective Accrued Certificate
Interest for each such Class of Certificates for such Distribution Date.
Certificate Deferred Interest allocated to the Class A-MFL Regular Interest
will, by virtue of such allocation, be allocated to the Class A-MFL
Certificates.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-MFL Regular Interest (and correspondingly the Class A-MFL
Certificates), Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class P Certificates, Class Q Certificates, Class T Certificates and Class NR
Certificates shall be increased by the amount of the Certificate Deferred
Interest allocated to such Class of Certificates or the Class A-MFL Regular
Interest, as applicable, on such Distribution Date pursuant to Section 4.06(a)
above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates or the Class A-MFL Regular Interest, as
applicable, shall be allocated in reduction of the amount of interest
distributable to the Related Uncertificated Lower-Tier Interest with respect
thereto (in the case of each of (i) the Class LA-1A-1, Class LA-1A-2, Class
LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class
LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class
LA-1A-13, Class LA-1A-14 and Class LA-1A-15 Uncertificated Interests, (ii) the
Class LA-2-1, Class LA-2-2 and Class LA-2-3 Uncertificated Interests, (iii) the
Class LA-3-1, Class LA-3-2, Class LA-3-3, Class LA-3-4 and Class LA-3-5
Uncertificated Interests, (iv) the Class LA-4-1, Class LA-4-2, Class LA-4-3,
Class LA-4-4, Class LA-4-5, Class LA-4-6, Class LA-4-7, Class LA-4-8 and Class
LA-4-9 Uncertificated Interests, (v) the Class LA-SB-1, Class LA-SB-2, Class
LA-SB-3, Class LA-SB-4, Class LA-SB-5, Class LA-SB-6 and Class LA-SB-7
Uncertificated Interests, (vi) the Class LE-1 and Class LE-2 Uncertificated
Interests, (vii) the Class LF-1 and Class LF-2 Uncertificated Interests, (viii)
the Class LG-1, Class LG-2 and Class LG-3 Uncertificated Interests, (ix) the
Class LH-1 and Class LH-2 Uncertificated Interests, (x) the Class LJ-1, Class
LJ-2 and Class LJ-3 Uncertificated Interests, (xi) the Class LK-1 and Class LK-2
Uncertificated Interests, (xii) the Class LL-1 and Class LL-2 Uncertificated
Interests, (xiii) the Class LM-1 and Class LM-2 Uncertificated Interests, (xiv)
the Class LP-1 and Class LP-2 Uncertificated Interests, (xv) the Class LNR-1,
Class LNR-2 and Class LNR-3 Uncertificated Interests, pro rata, based on their
respective Certificate Balances). On each Distribution Date, to the extent
provided in Section 4.06(b) with respect to the Related Certificates,
Certificate Deferred Interest will be added to the Lower-Tier Principal Amount
of the Uncertificated Lower-Tier Interests in the same manner as the interest
thereon was reduced pursuant to the preceding sentence.
Section 4.07 Grantor Trust Reporting. (a) The parties intend that
the portion of the Trust Fund constituting the Grantor Trust, which consists of
the Class A-MFL Regular Interest, the Swap Contract, the Floating Rate Account
and proceeds thereof, shall constitute, and that the affairs of the Trust Fund
(exclusive of the Lower-Tier REMIC and the Upper-Tier REMIC) shall be conducted
so as to qualify such portion as, a "grantor trust" under subpart E, Part I of
subchapter J of the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall have no power to vary the investment of the Class A-MFL Certificateholders
in their related assets so as to improve their rate of return. In addition, the
Paying Agent shall (A) as soon as possible after the Swap Contract is entered
into (but no later than the first payment date under the Swap Contract), obtain
a taxpayer identification number for the Grantor Trust and deliver or cause to
be delivered the federal taxpayer identification number of the Grantor Trust on
an IRS Form W-9 to the Swap Counterparty and, if requested by the Swap
Counterparty (unless not permitted under federal income tax law), an applicable
IRS Form W-8IMY, (B) file, or cause to be filed, Internal Revenue Service Form
1041 or such other form as may be applicable with the Internal Revenue Service
with copies of the statements in the following clause, and (C) furnish, or cause
to be furnished, to the Class A-MFL Certificateholders, their allocable share of
income and expense with respect to the Class A-MFL Regular Interest and the Swap
Contract, each in the time or times and in the manner required by the Code.
(b) The Grantor Trust is and shall be treated as a WHFIT that is a
NMWHFIT. The Trustee will report as required under the WHFIT Regulations to the
extent such information as is reasonably necessary to enable the Trustee to do
so, and is not in the possession of the Trustee, is provided to the Trustee on a
timely basis. The Trustee is hereby directed to assume that The Depository Trust
Company is the only "middleman" as defined by the WHFIT Regulations unless the
Depositor provides the Trustee with the identities of other "middlemen" that are
Certificateholders. The Trustee shall be entitled to rely on the first sentence
of this paragraph and shall be entitled to indemnification in accordance with
the terms of this Agreement in the event that the IRS makes a determination that
the first sentence of this paragraph is incorrect.
(c) The Trustee, in its discretion, will report required WHFIT
information using either the cash or accrual method, except to the extent the
WHFIT Regulations specifically require a different method. The Trustee will be
under no obligation to determine whether any Certificateholder uses the cash or
accrual method. The Trustee will make available (via its website) WHFIT
information to Certificateholders annually. In addition, the Trustee will not be
responsible or liable for providing subsequently amended, revised or updated
information to any Certificateholder, unless requested by the Certificateholder.
(d) The Trustee shall not be liable for failure to meet the
reporting requirements of the WHFIT Regulations or for any penalties thereunder
if such failure is due to: (i) the lack of reasonably necessary information
being provided to the Trustee that is not in the possession of the Trustee, (ii)
incomplete, inaccurate or untimely information being provided to the Trustee or
(iii) the inability of the Trustee, after good faith efforts, to alter its
existing information reporting systems to capture information necessary to fully
comply with the WHFIT Regulations for the 2007 calendar year. Absent receipt of
information regarding any sale of Certificates, including the price, amount of
proceeds and date of sale from the beneficial owner thereof or the Depositor,
the Trustee may assume there is no secondary market trading of WHFIT interests.
(e) To the extent required by the WHFIT Regulations, the Trustee
will use reasonable efforts to publish on an appropriate website the CUSIPs for
the certificates that represent ownership of a WHFIT. The CUSIPs so published
will represent the Rule 144A CUSIPs. The Trustee will not publish any associated
Reg S CUSIPs. The Trustee will make reasonable good faith efforts to keep the
website accurate and updated to the extent CUSIPs have been received. Absent the
receipt of a CUSIP, the Trustee will use a reasonable identifier number in lieu
of a CUSIP. The Trustee will not be liable for investor reporting delays that
result from the receipt of inaccurate or untimely CUSIP information.
(f) The Trustee shall be entitled to additional reasonable
compensation for changes in reporting required in respect of the WHFIT
Regulations that arise as a result of a change in the WHFIT Regulations or a
change in interpretation of the WHFIT Regulations by the IRS or the Depositor or
its counsel, if such change requires, in the Trustee's sole and reasonable
discretion, a material increase in the Trustee's reporting obligations in
respect of the related grantor trust.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-29. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class R and Class LR
Certificates will each be issuable in one or more registered, definitive
physical certificates (each, a "Definitive Certificate") substantially in the
form of Certificates of each Class and with such applicable legends as are set
forth in the Exhibits hereto corresponding to such Class. Each Certificate will
share ratably in all rights of the related Class. The Class X Certificates will
be issuable only in minimum Denominations of authorized initial Notional Amount
of not less than $1,000,000 and in integral multiples of $1.00 in excess
thereof. The Class A-MFL Certificates will be issuable only in minimum
Denominations of authorized initial Certificate Balance of not less than
$100,000 and in integral multiples of $1.00 in excess thereof. The Offered
Certificates (other than the Class X Certificates and the Class A-MFL
Certificates) will be issuable only in minimum Denominations of authorized
initial Certificate Balance of not less than $10,000, and in integral multiples
of $1.00 in excess thereof. The Non-Registered Certificates (other than the
Class X-1 and Residual Certificates) will be issuable in minimum Denominations
of authorized initial Certificate Balance of not less than $25,000, and in
integral multiples of $1.00 in excess thereof. If the Original Certificate
Balance or initial Notional Amount, as applicable, of any Class does not equal
an integral multiple of $1.00, then a single additional Certificate of such
Class may be issued in a minimum denomination of authorized initial Certificate
Balance or initial Notional Amount, as applicable, that includes the excess of
(i) the Original Certificate Balance or initial Notional Amount, as applicable,
of such Class over (ii) the largest integral multiple of $1.00 that does not
exceed such amount. The Class R and Class LR Certificates will be issuable only
in one or more Definitive Certificates in denominations representing Percentage
Interests of not less than 20%. With respect to any Certificate or any
beneficial interest in a Certificate, the "Denomination" thereof shall be (i)
the amount (a) set forth on the face thereof or, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial Notional Amount, as applicable, and (iii) be in
an authorized denomination, as set forth above. The Book-Entry Certificates will
be issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. Xxxxx
Fargo Bank, N.A. is hereby initially appointed Authenticating Agent with power
to act, on the Trustee's behalf, in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
Xxxxx Fargo Bank, N.A. is removed as Paying Agent, then Xxxxx Fargo Bank, N.A.
shall be terminated as Authenticating Agent. If the Authenticating Agent is
terminated, the Trustee shall appoint a successor Authenticating Agent, which
may be the Trustee or an Affiliate thereof.
(b) Xxxxx Fargo Bank, N.A. maintains an office and conducts
certificate transfer services at Xxxxx Xxxxx Xxxxxx, Xxxxx xxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000. Xxxxx Fargo otherwise conducts trustee and
securities administration services at its offices in Columbia, Maryland. Its
address there is 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Xxxxx Fargo Bank,
N.A. is hereby initially appointed Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Trustee, the Paying Agent, the Special Servicer
and the Master Servicer, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment. The Depositor, the Trustee, the Master Servicer and the Special
Servicer shall have the right to inspect the Certificate Register or to obtain a
copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. The names and addresses of all Certificateholders and the
names and addresses of the transferees of any Certificates shall be registered
in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Master
Servicer, the Paying Agent, the Trustee, the Special Servicer and any agent of
any of them shall not be affected by any notice or knowledge to the contrary. A
Definitive Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at its office maintained at
Xxxxx Fargo Bank, N.A., as Certificate Registrar, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attn: Corporate Trust Services - X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Trust 2007-CIBC20, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC20 (the "Registrar Office")
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney). Subject to the requirements of Sections 5.02(b), (c) and
(d), the Certificate Registrar shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination as
the Definitive Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchaser to Centerline REIT
Inc.) is to be made in reliance upon an exemption from the Securities Act, and
under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Registrar Office of (1) the Definitive Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(d),
(2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in such Regulation
S Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (3) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (4) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate, a Regulation S Transfer Certificate
from the transferor or (y) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, if delivery is to be taken in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder, and the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall increase the
Denomination of the Regulation S Book-Entry Certificate or the Rule 144A
Book-Entry Certificate, as the case may be, by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who,
in the case of any increase in the Regulation S Book-Entry Certificate
during the Restricted Period, shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501
(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (d) (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a representation
letter from the proposed purchaser or transferee of such Certificate
substantially in the form of Exhibit F attached hereto, to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or a plan subject to Section
4975 of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
or a church plan (as defined in Section 3(33) of ERISA) for which no election
has been made under Section 410(d) of the Code subject to any federal, state or
local law ("Similar Law") which is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each, a "Plan") or (b) a person
acting on behalf of or using the assets of any such Plan (including an entity
whose underlying assets include Plan assets by reason of investment in the
entity by such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than an insurance company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60 or (ii) if such Certificate which
may be held only by a person not described in (a) or (b) above, is presented for
registration in the name of a purchaser or transferee that is any of the
foregoing, an Opinion of Counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Paying Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriters, the Initial Purchaser or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in the Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any ERISA Restricted Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or in the case of an ERISA Restricted Certificate,
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Underwriters, the Initial Purchaser, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
ERISA Restricted Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer or the Special Servicer, as applicable, will make available, or
cause to be made available, upon request, to any Holder and any Person to whom
any such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Master Servicer, the Special Servicer or the Mortgage Loans
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicer, the Trustee and the Certificate Registrar of any change or
impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Authenticating
Agent and the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement;
provided, however, that the Certificate Registrar shall be under such
liability for a registration of Transfer of a Residual Certificate if it
has actual knowledge that the proposed Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person in violation of Section 5.02(c)(i)(C) above or is not a Permitted
Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-MFL,
Class A-J or Class X-2 Certificates) or a beneficial interest in a Book-Entry
Certificate representing a Non-Registered Certificate is being held by or for
the benefit of a Person who is not an Eligible Investor, or that such holding is
unlawful under the laws of a relevant jurisdiction, then the Certificate
Registrar shall have the right to void such transfer, if permitted under
applicable law, or to require the investor to sell such Definitive Certificate
or beneficial interest in such Book-Entry Certificate to an Eligible Investor
within 14 days after notice of such determination and each Certificateholder by
its acceptance of a Certificate authorizes the Certificate Registrar to take
such action.
(f) The Certificate Registrar shall provide an updated copy of the
Certificate Register to the Trustee, the Paying Agent, the Master Servicer, the
Special Servicer and the Depositor upon written request.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
(i) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments made or received under the Swap Contract and payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders. Such amounts shall be deemed to have been distributed to
such Certificateholders for all purposes of this Agreement.
(j) No transfer of any Class A-MFL Certificate presented or
surrendered for registration of transfer or exchange shall be made unless the
transfer or exchange is accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments)
or W-9 in form satisfactory to the Paying Agent, duly executed by such
Certificateholder or his attorney duly authorized in writing (with copies
directly from such Certificateholders to the Swap Counterparty). The Paying
Agent shall promptly forward any such IRS Form received by the Paying Agent to
the Swap Counterparty. The Class A-MFL Certificateholder by its purchase of such
a Certificate shall be deemed to consent to any IRS Form being so forwarded.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Trustee, the
Paying Agent, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Master Servicer, on the Trustee's behalf, has been directed to institute any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate Registrar will execute, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered to the
Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Special Servicer, the Paying Agent, the Trustee, the Certificate Registrar
and any agents of any of them may treat the person in whose name such
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions pursuant to Section 4.01 and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder," and none of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Certificate Registrar and any agent
of any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Paying Agent shall make such determination
based on a certificate of such Person which shall be addressed to the Paying
Agent and shall specify, in reasonable detail satisfactory to the Paying Agent,
such Person's name and address, the Class and Certificate Balance or Notional
Amount of the Regular Certificate beneficially owned, and any intermediaries
through which such Person's interest in such Regular Certificate is held (any
such certification, other than one which the Paying Agent shall refuse to
recognize pursuant to the following procedures, a "Certificate Ownership
Certification"); provided, however, that the Paying Agent shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the actual
knowledge of a Responsible Officer of such party, acquired its interest in a
Regular Certificate in violation of the transfer restrictions herein, or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Paying Agent from the Depository or any Depository
Participant with respect to the identity of a Certificate Owner; provided,
however, that to the extent the Paying Agent is required to obtain such
Certificate Owner information from the Depository or any Depository Participant,
the Paying Agent shall be reimbursed for any cost or expense in obtaining such
information from the Distribution Account. The Paying Agent may conclusively
rely on such Certificate Ownership Certification. The Master Servicer will only
be required to acknowledge the status of any Person as a Certificateholder or
Certificate Owner to the extent that the Paying Agent, at the request of the
Master Servicer, identifies such Person as a Certificateholder or Certificate
Owner.
Section 5.07 Appointment of Paying Agent. (a) Xxxxx Fargo Bank, N.A.
is hereby initially appointed Paying Agent to act on the Trustee's behalf in
accordance with the terms of this Agreement. If the Paying Agent resigns or is
terminated, the Trustee shall appoint a successor Paying Agent which may be the
Trustee or an Affiliate thereof to fulfill the obligations of the Paying Agent
hereunder which must be (i) a corporation, national bank, national banking
association or a trust company, organized and doing business under the laws of
any state or the United States of America, authorized under such laws to
exercise corporate trust powers under this Agreement, having a combined capital
and surplus of at least $100,000,000 and subject to supervision or examination
by federal or state authority and shall not be an Affiliate of the Master
Servicer or the Special Servicer (except during any period when the Trustee is
acting as, or has become successor to, the Master Servicer or the Special
Servicer, as the case may be, pursuant to Section 7.02), (ii) an institution
insured by the Federal Deposit Insurance Corporation and (iii) an institution
whose long-term senior unsecured debt is rated "AA-" by S&P and "Aa3" by Xxxxx'x
(or such entity as would not, as evidenced in writing by such Rating Agency,
result in the qualification, downgrading or withdrawal of any of the ratings
then assigned thereby to the Certificates or any class of Serviced Companion
Loan Securities); provided that the Paying Agent shall not cease to be eligible
to serve as such based on a failure to satisfy such rating requirements so long
as the Paying Agent maintains a long-term unsecured debt rating of no less than
"A" from S&P and "A2" from Xxxxx'x (or such rating as would not, as evidenced in
writing by such Rating Agency, result in a qualification, downgrading or
withdrawal of any of the ratings assigned to the Certificates or any class of
Serviced Companion Loan Securities).
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Master Servicer, the Special Servicer or of the
Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer. The Depositor, the Master Servicer and the Special Servicer
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, the
Master Servicer and the Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicer and the Special Servicer each will
keep in full effect its existence, rights and franchises as an entity under the
laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans or Companion Loans and to perform its respective duties under
this Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer each
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, the Master Servicer or the
Special Servicer, shall be the successor of the Depositor, the Master Servicer
and the Special Servicer (such Person, in the case of the Master Servicer or the
Special Servicer, in each of the foregoing cases, the "Surviving Entity"), as
the case may be, hereunder, without the execution or filing of any paper (other
than an assumption agreement wherein the successor shall agree to perform the
obligations of and serve as the Depositor, the Master Servicer or the Special
Servicer, as the case may be, in accordance with the terms of this Agreement) or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that such merger, consolidation or
succession will not result in a withdrawal, downgrading or qualification of the
then-current ratings of the Classes of Certificates or any class of Serviced
Companion Loan Securities that have been so rated (as evidenced by a letter to
such effect from each Rating Agency); provided, further however, that for so
long as the Trust, and, with respect to any Companion Loan included as part of
the trust in a related Other Securitization, is subject to the reporting
requirements of the Exchange Act, if the Master Servicer or the Special Servicer
notifies the Depositor in writing (a "Merger Notice") of any such merger,
consolidation, conversion or other change in form, and the Depositor or the
depositor in such Other Securitization, as the case may be, notifies the Master
Servicer or the Special Servicer, as applicable, in writing that the Depositor
or the depositor in such Other Securitization, as the case may be, has
discovered that such successor entity has not complied with its Exchange Act
reporting obligations under any other commercial mortgage loan securitization
(and specifically identifying the instance of noncompliance), then it shall be
an additional condition to such succession that the Depositor shall have
consented (which consent shall not be unreasonably withheld or delayed) to such
successor entity. If, within 60 days following the date of delivery of the
Merger Notice to the Depositor, the Depositor shall have failed to notify the
Master Servicer or the Special Servicer, as applicable, in writing of the
Depositor's determination to grant or withhold such consent, such failure shall
be deemed to constitute a grant of such consent. If the conditions to the
provisions in the second preceding sentence are not met, the Trustee may
terminate, and if the conditions set forth in the second proviso of the second
preceding sentence are not met the Trustee shall terminate, the applicable
Surviving Entity's servicing of the Mortgage Loans pursuant hereto, such
termination to be effected in the manner set forth in Section 7.01.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others. (a) None of the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates or any of the
directors, officers, employees or agents of any of the foregoing shall be under
any liability to the Trust, the Certificateholders or the Companion Holders for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
(i) this provision shall not protect the Depositor, the Master Servicer, the
Special Servicer and their respective Affiliates or any such Person against any
breach of warranties or representations made herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of negligent disregard of obligations
and duties hereunder. The Depositor, the Master Servicer (including in its
capacity as Companion Paying Agent) and the Special Servicer and their
respective Affiliates and any director, officer, member, manager, employee or
agent of the Depositor, the Master Servicer or the Special Servicer and their
respective Affiliates may rely on any document of any kind which, prima facie,
is properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer (including in its capacity as
Companion Paying Agent) and the Special Servicer and their respective Affiliates
and any director, officer, employee or agent of any of the foregoing shall be
indemnified and held harmless by the Trust against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action (whether in equity or at law) or claim relating
to this Agreement, the Mortgage Loans, the Companion Loans or the Certificates,
other than any loss, liability or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof; (ii) incurred in connection with any
breach of a representation or warranty made by it herein; (iii) incurred by
reason of bad faith, willful misconduct or negligence in the performance of its
obligations or duties hereunder, or by reason of negligent disregard of such
obligations or duties; or (iv) in the case of the Depositor and any of its
directors, officers, employees and agents, incurred in connection with any
violation by any of them of any state or federal securities law. Each of the
Master Servicer and the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format) as
contemplated by and in accordance with this Agreement and reasonably believed or
in good faith believed by the Master Servicer or the Special Servicer to be
genuine and to have been signed or presented by the proper party or parties and
each of them may consult with counsel, in which case any written advice of
counsel or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel.
(b) None of the Depositor, the Master Servicer and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action (whether in equity or at law), proceeding,
hearing or examination that is not incidental to its respective duties under
this Agreement or which in its opinion may involve it in any expense or
liability not recoverable from the Trust Fund; provided, however, that each of
the Depositor, the Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans and Companion Loans on deposit in the
Certificate Account, as provided by Section 3.05(a).
(c) Each of the Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent, any Serviced Companion
Noteholder and the Trust and any director, officer, employee or agent thereof,
and hold them harmless, from and against any and all claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses that any of them may sustain arising
from or as a result of any willful misfeasance, bad faith or negligence of the
Master Servicer or the Special Servicer, as the case may be, in the performance
of its obligations and duties under this Agreement or by reason of negligent
disregard by the Master Servicer or the Special Servicer, as the case may be, of
its duties and obligations hereunder or by reason of breach of any
representations or warranties made herein; provided that such indemnity shall
not cover indirect or consequential damages. The Trustee, the Paying Agent or
the Depositor, as the case may be, shall immediately notify the Master Servicer
or the Special Servicer, as applicable, if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Trust to
indemnification hereunder, whereupon the Master Servicer or the Special
Servicer, as the case may be, shall assume the defense of such claim (with
counsel reasonably satisfactory to the Trustee, the Paying Agent or the
Depositor) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Master Servicer or the Special Servicer, as the case may be, shall not
affect any rights any of the foregoing Persons may have to indemnification under
this Agreement or otherwise, unless the Master Servicer's or the Special
Servicer's, as the case may be, defense of such claim is materially prejudiced
thereby.
(d) Each of the Trustee and the Paying Agent, respectively agrees to
indemnify the Master Servicer and the Special Servicer and any director,
officer, employee or agent thereof, and hold them harmless, from and against any
and all claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Trustee or the Paying Agent,
respectively, in the performance of its obligations and duties under this
Agreement or by reason of negligent disregard by the Trustee or the Paying
Agent, respectively, of its duties and obligations hereunder or by reason of
breach of any representations or warranties made herein; provided, that such
indemnity shall not cover indirect or consequential damages. The Master Servicer
or the Special Servicer, as the case may be, shall immediately notify the
Trustee and the Paying Agent, respectively, if a claim is made by a third party
with respect to this Agreement, whereupon the Trustee or the Paying Agent shall
assume the defense of such claim (with counsel reasonably satisfactory to the
Master Servicer or the Special Servicer) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Trustee or the Paying Agent shall not affect
any rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Trustee's or the Paying Agent's defense of
such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify the Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Master Servicer or the Special Servicer, as the
case may be, shall immediately notify the Depositor if a claim is made by a
third party with respect to this Agreement, whereupon the Depositor shall assume
the defense of such claim (with counsel reasonably satisfactory to the Master
Servicer or the Special Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
(f) The applicable Non-Serviced Master Servicer, Non-Serviced
Special Servicer, Non-Serviced Paying Agent and Non-Serviced Trustee, and any of
their respective directors, officers, employees or agents (collectively, the
"Non-Serviced Indemnified Parties"), shall be indemnified by the Trust and held
harmless against the Trust's pro rata share (subject to the applicable
Non-Serviced Intercreditor Agreement) of any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to a Non-Serviced Mortgage Loan under
the applicable Non-Serviced Pooling Agreement or this Agreement, reasonably
requiring the use of counsel or the incurring of expenses, other than any losses
incurred by reason of any Non-Serviced Indemnified Party's willful misfeasance,
bad faith or negligence in the performance of its duties or by reason of
negligent disregard of its obligations and duties under the applicable
Non-Serviced Pooling Agreement or the applicable Non-Serviced Intercreditor
Agreement.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the Master Servicer, the
Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign. Subject to the provisions of Section 6.02, neither the Master Servicer
nor the Special Servicer shall resign from their respective obligations and
duties hereby imposed on each of them except upon (a) determination that such
party's duties hereunder are no longer permissible under applicable law or (b)
in the case of the Master Servicer, upon the appointment of, and the acceptance
of such appointment by, a successor Master Servicer and receipt by the Trustee
of written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates or any class of Serviced Companion Loan Securities. Only
the Master Servicer shall be permitted to resign pursuant to clause (b) above.
Any such determination permitting the resignation of the Master Servicer or the
Special Servicer pursuant to clause (a) above shall be evidenced by an Opinion
of Counsel (at the expense of the resigning party) to such effect delivered to
the Trustee and the Directing Certificateholder. No such resignation by the
Master Servicer or the Special Servicer shall become effective until the Trustee
or a successor Master Servicer or successor Special Servicer, as applicable,
shall have assumed the Master Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02. Upon any
termination or resignation of the Master Servicer hereunder, the Master Servicer
shall have the right and opportunity to appoint any successor Master Servicer
with respect to this Section 6.04, provided that such successor Master Servicer
is approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicer and the Special Servicer. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer and the Special
Servicer hereunder or exercise the rights of the Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, that the Master Servicer
and the Special Servicer shall not be relieved of any of their respective
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner. The Master Servicer, the Special Servicer or any Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder. The Directing
Certificateholder shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer with
respect to Non-Specially Serviced Mortgage Loans, as to all matters for which
the Master Servicer must obtain the consent or deemed consent of the Special
Servicer, and the Master Servicer with respect to Non-Specially Serviced
Mortgage Loans as to which the Master Servicer must obtain the consent or deemed
consent of the Directing Certificateholder, and (3) the Special Servicer with
respect to all Mortgage Loans for which an extension of maturity is being
considered by the Special Servicer or by the Master Servicer subject to consent
or deemed consent of the Special Servicer, and notwithstanding anything herein
to the contrary, except as set forth in, and in any event subject to, Section
3.08(f) and the second and third paragraphs of this Section 6.07, both (a) the
Master Servicer will not be permitted to take any of the following actions
unless it has obtained the consent of the Special Servicer (which will be deemed
granted if the Special Servicer does not respond within 10 Business Days
following the Master Servicer's delivery of certain notice and other
information) and (b) the Special Servicer will not be permitted to consent to
the Master Servicer's taking any of the following actions, nor will the Special
Servicer itself be permitted to take any of the following actions, as to which
the Directing Certificateholder has objected in writing within ten (10) Business
Days of being notified thereof (provided that if such written objection has not
been received by the Master Servicer or the Special Servicer, as applicable,
within such ten (10) Business Day period, then the Directing Certificateholder
will be deemed to have waived its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs
but excluding waiver of Default Interest or late payment charges) of a
Mortgage Loan or any extension of the maturity date of any Mortgage Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price (other than in connection with the exercise
of the Purchase Option);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan and for which there is no material lender
discretion;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the Mortgagor or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes (with respect to a
Mortgage Loan with a principal balance greater than $2,500,000) or
franchise changes for which the lender is required to consent or approve
under the Mortgage Loan documents;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves other than those required
pursuant to the specific terms of the related Mortgage Loan and for which
there is no material lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default.
provided that, in the event that the Special Servicer or Master Servicer (in the
event the Master Servicer is otherwise authorized by this Agreement to take such
action), as applicable, determines that immediate action, with respect to the
foregoing matters, or any other matter requiring consent of the Directing
Certificateholder in this Agreement, is necessary to protect the interests of
the Certificateholders (as a collective whole), the Special Servicer or Master
Servicer, as applicable may take any such action without waiting for the
Directing Certificateholder's response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of any related Companion Holder to advise the Special Servicer with
respect to the related Serviced Whole Loan pursuant to the terms of the related
Intercreditor Agreement, may direct the Special Servicer to take, or to refrain
from taking, such other actions with respect to a Mortgage Loan, as the
Directing Certificateholder may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary, no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Master Servicer or the Special Servicer to
violate any provision of any Mortgage Loan, applicable law, this Agreement or
the REMIC Provisions, including without limitation the Master Servicer's or the
Special Servicer's obligation to act in accordance with the Servicing Standards,
or expose the Master Servicer, the Special Servicer, the Paying Agent, the Trust
Fund or the Trustee to liability, or materially expand the scope of the Master
Servicer's or the Special Servicer's responsibilities hereunder or cause the
Master Servicer or the Special Servicer to act, or fail to act, in a manner
which in the reasonable judgment of the Master Servicer or the Special Servicer
is not in the best interests of the Certificateholders.
In the event the Special Servicer or Master Servicer, as applicable,
determines that a refusal to consent by the Directing Certificateholder or any
advice from the Directing Certificateholder would otherwise cause the Special
Servicer or Master Servicer, as applicable, to violate the terms of any Mortgage
Loan, applicable law or this Agreement, including without limitation, the
Servicing Standards, the Special Servicer or Master Servicer, as applicable,
shall disregard such refusal to consent or advise and notify the Directing
Certificateholder, the Trustee and the Rating Agencies of its determination,
including a reasonably detailed explanation of the basis therefor. The taking
of, or refraining from taking, any action by the Master Servicer or Special
Servicer in accordance with the direction of or approval of the Directing
Certificateholder that does not violate any law or the Servicing Standards or
any other provisions of this Agreement, will not result in any liability on the
part of the Master Servicer or the Special Servicer.
The Directing Certificateholder shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action, or for errors in judgment; provided, however, that the
Directing Certificateholder shall not be protected against any liability to a
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates including the Holders of the Controlling Class over
other Classes of the Certificates, and that the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
some Classes of the Certificates, that the Directing Certificateholder may act
solely in the interests of the Holders of the Controlling Class, including the
Holders of the Controlling Class that the Directing Certificateholder does not
have any duties or liability to the Holders of any Class of Certificates other
than the Controlling Class, that the Directing Certificateholder shall not be
liable to any Certificateholder, by reason of its having acted solely in the
interests of the Holders of the Controlling Class, and that the Directing
Certificateholder shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any director, officer, employee, agent or principal thereof
for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination. (a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make any deposit
required to be made by the Master Servicer to the Certificate Account, or
remit to the Companion Paying Agent for deposit into the related Companion
Distribution Account, on the day and by the time such deposit or
remittance is required to be made under the terms of this Agreement, which
failure is not remedied within one Business Day or (B) any failure by the
Master Servicer to deposit into, or remit to the Paying Agent for deposit
into, any Distribution Account any amount required to be so deposited or
remitted, which failure is not remedied by 11:00 a.m. (New York City time)
on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Master Servicer for deposit into the Certificate
Account or to deposit into, or to remit to the Paying Agent for deposit
into, the Lower-Tier Distribution Account any amount required to be so
deposited or remitted by the Special Servicer pursuant to, and at the time
specified by, the terms of this Agreement; or
(iii) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (or (A) with respect to any year that a
report on Form 10-K is required to be filed, 5 Business Days in the case
of the Master Servicer's or Special Servicer's, as applicable, obligations
contemplated by Article XI, (B) 15 days in the case of the Master
Servicer's failure to make a Servicing Advance or (C) 15 days in the case
of a failure to pay the premium for any insurance policy required to be
maintained hereunder) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A) to
the Master Servicer or the Special Servicer, as the case may be, by any
other party hereto, or (B) to the Master Servicer or the Special Servicer,
as the case may be, with a copy to each other party to this Agreement, by
the Holders of Certificates evidencing Percentage Interests aggregating
not less than 25% or, with respect to any Serviced Whole Loan, by any
related Serviced Companion Noteholder; provided, however, if such failure
is capable of being cured and the Master Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(iv) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders or Companion Holders
(excluding the holder of any Non-Serviced Companion Loan) and which
continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been
given to the Master Servicer or the Special Servicer, as the case may be,
by the Depositor, the Paying Agent or the Trustee, or to the Master
Servicer, the Special Servicer, the Depositor, the Paying Agent and the
Trustee by the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% or, with respect to any Serviced Whole Loan,
by any related Serviced Companion Noteholder; provided, however, if such
breach is capable of being cured and the Master Servicer or the Special
Servicer, as applicable, is diligently pursuing such cure, such 30-day
period will be extended an additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Master Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) a Servicing Officer of the Master Servicer or Special
Servicer, as applicable, obtains actual knowledge that Xxxxx'x has (A)
qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (B) has placed one or more Classes of
Certificates on "watch status" in contemplation of a ratings downgrade or
withdrawal (and such "watch status" placement shall not have been
withdrawn within 60 days of the date such Servicing Officer obtained such
actual knowledge) and, in the case of either of clauses (A) or (B), cited
servicing concerns with the Master Servicer or Special Servicer, as
applicable, as the sole or material factor in such rating action; or
(ix) the Trustee has received a written notice from Fitch (which the
Trustee is required to promptly forward to the Master Servicer or the
Special Servicer, as applicable), to the effect that if the Master
Servicer or the Special Servicer, as applicable, continues to act in such
capacity, the rating or ratings on one or more Classes of Certificates
will be downgraded or withdrawn, citing servicing concerns relating to the
Master Servicer or the Special Servicer, as the case may be, as the sole
or material factor in such action; provided, such Master Servicer or the
Special Servicer, as applicable, shall have ninety (90) days to resolve
such matters to the satisfaction of Fitch (or such longer time period as
may be agreed to in writing by Fitch) prior to the replacement of the
Master Servicer or the Special Servicer or the downgrade of any Class of
Certificates; or
(x) the Master Servicer or Special Servicer is no longer rated at
least "CMS3" or "CSS3", respectively, by Fitch, and is not restored to
such rating within 90 days of such delisting; or
(xi) the Master Servicer or the Special Servicer is no longer listed
on S&P's Select Servicer List as a U.S. Commercial Mortgage Master
Servicer or a U.S. Commercial Mortgage Special Servicer, as applicable,
and is not reinstated to S&P's Select Servicer List within 30 days of such
removal and any of the ratings assigned to the Certificates have been
qualified, downgraded or withdrawn in connection with such a delisting.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction of the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, that the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of the Master Servicer, or the Special Servicer pursuant to and
under this Section, and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and Special Servicer each
agree that if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 20 Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records requested by it to enable it to assume the Master Servicer's or the
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or the
Special Servicer's, as the case may be, responsibilities and rights (subject to
Section 3.11 and Section 6.03) hereunder, including, without limitation, the
transfer within 5 Business Days to the Trustee for administration by it of all
cash amounts which shall at the time be or should have been credited by the
Master Servicer to the Certificate Account or any Servicing Account (if it is
the Defaulting Party), by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
or any REO Property (provided, however, that the Master Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b), continue to
be entitled to receive all amounts accrued or owing to it under this Agreement
on or prior to the date of such termination, whether in respect of Advances (in
the case of the Special Servicer or the Master Servicer) or otherwise, and it
and its Affiliates and the directors, managers, officers, members, employees and
agents of it and its Affiliates shall continue to be entitled to the benefits of
Section 3.11 and Section 6.03 notwithstanding any such termination).
(c) If the Master Servicer receives notice of termination under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(viii) or
(xi) and if the Master Servicer to be terminated pursuant to Section 7.01(b)
provides the Trustee with the appropriate "request for proposal" materials
within five (5) Business Days following such termination notice, then the Master
Servicer shall continue to service as Master Servicer hereunder until a
successor Master Servicer is selected in accordance with this Section 7.01(c).
Upon receipt of the "request for proposal" materials, Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the Master
Servicer pursuant to Section 7.01(b)) solicit good faith bids for the rights to
service the Mortgage Loans and Companion Loans under this Agreement from at
least three (3) Persons qualified to act as Master Servicer hereunder in
accordance with Sections 6.02 and 7.02 (any such Person so qualified, a
"Qualified Bidder") or, if three (3) Qualified Bidders cannot be located, then
from as many persons as the Trustee can determine are Qualified Bidders;
provided that, at the Trustee's request, the Master Servicer shall supply the
Trustee with the names of Persons from whom to solicit such bids; and provided,
further, that the Trustee shall not be responsible if less than three (3) or no
Qualified Bidders submit bids for the right to service the Mortgage Loans and
Companion Loans under this Agreement. The bid proposal shall require any
Successful Bidder (as defined below), as a condition of such bid, to enter into
this Agreement as successor Master Servicer, and to agree to be bound by the
terms hereof, within 45 days after the notice of termination of the Master
Servicer. The materials provided to the Trustee shall provide for soliciting
bids: (i) on the basis of such successor Master Servicer retaining all
Sub-Servicers to continue the primary servicing of the Mortgage Loans and
Companion Loans pursuant to the terms of the respective Sub-Servicing Agreements
(each, a "Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing-Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder; provided, however, that if the
Trustee does not receive confirmation in writing by each Rating Agency that the
appointment of such Successful Bidder as successor Master Servicer will not
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any Class of Certificates or any class of Serviced
Companion Loan Securities within 10 days after the selection of such Successful
Bidder, then the Trustee shall repeat the bid process described above (but
subject to the above-described 45-day time period) until such confirmation is
obtained. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof no later
than 45 days after notice of the termination of the Master Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the Master Servicer to be terminated
pursuant to Section 7.01(b), the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The Master Servicer to be terminated pursuant to Section 7.01(b)
shall be responsible for all out-of-pocket expenses incurred in connection with
the attempt to sell its rights to service the Mortgage Loans, which expenses are
not reimbursed to the party that incurred such expenses pursuant to the
preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
Master Servicer to be terminated pursuant to Section 7.01(b) shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
Notwithstanding Section 7.01(b), if any Event of Default on the part
of the Master Servicer shall occur and be continuing that materially and
adversely affects a Serviced Whole Loan, Serviced Companion Loan or any Serviced
Companion Loan Securities, then, so long as such Event of Default shall not have
been remedied, the trustee appointed under the related Other Pooling and
Servicing Agreement shall be entitled to direct the Trustee, and the Trustee
shall be entitled, to terminate all of the rights and obligations of the Master
Servicer and appoint a replacement master servicer solely with respect to such
Serviced Whole Loan. The replacement master servicer shall be selected by the
Majority Controlling Class Certificateholder and the related directing
certficateholder under the Other Pooling and Servicing Agreement, provided that
if such holders are not able to agree on a replacement master servicer within 30
days following notice of such Event of Default, such replacement master servicer
shall be selected by the Majority Controlling Class Certificateholder. Any such
replacement master servicer under this paragraph shall meet the eligibility
requirements of Section 7.02 and the eligibility requirements of the related
Other Pooling and Servicing Agreement, and the appointment thereof shall comply
with the provisions of Section 7.02. Any appointment of a replacement master
servicer in accordance with this paragraph shall be subject to the receipt of
confirmation from the Rating Agencies that such replacement will not result in
the downgrade, withdrawal or qualification of the ratings of any Class of
Certificates or class of any related Serviced Companion Loan Securities. In
addition, if the Trustee appoints a replacement master servicer solely with
respect to a Serviced Whole Loan, the Master Servicer shall not be liable for
any losses incurred due to the actions of such replacement master servicer.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Master Servicer, the Paying
Agent and the Trustee; such termination to be effective upon the appointment of
a successor Special Servicer meeting the requirements of this Section 7.01(d).
Upon a termination or resignation of such Special Servicer, the Directing
Certificateholder shall appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then-current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated or, insofar as there is then outstanding any class of Serviced
Companion Loan Securities that is then rated by such Rating Agency, in a similar
event with respect to such class of Serviced Companion Loan Securities.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to this Section 7.01(d). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
(f) The Master Servicer and Special Servicer shall, as the case may
be, from time to time, take all such reasonable actions as are required by it in
accordance with the related Servicing Standards in order to prevent the
Certificates from being placed on "watch" status or downgraded due to servicing
or special servicing, as applicable, concerns by any Rating Agency. In no event
shall the remedy for a breach of the foregoing covenant extend beyond
termination pursuant to Section 7.01(a)(iii) and the resulting operation of
Section 7.01(b) and (c) and the payment by the terminated Master Servicer (or
the netting from the proceeds of the bid from a Successful Bidder) of "out of
pocket" expenses incurred in connection with obtaining bids and/or transferring
servicing. The operation of this subsection (f) shall not be construed to limit
the effect of Section 7.01(a)(viii), (ix), (x) or (xi).
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(b), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the Master
Servicer and the Master Servicer shall be the successor to the Special Servicer,
until such successor to the Special Servicer is appointed by the Directing
Certificateholder as provided in Section 7.01(d), as applicable, in all respects
in its capacity as Master Servicer or Special Servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to, and
have the benefit of, all of the rights, (subject to Section 3.11 and Section
6.03) benefits, responsibilities, duties, liabilities and limitations on
liability relating thereto and that arise thereafter placed on or for the
benefit of the Master Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that any failure to perform such duties or
responsibilities caused by the terminated party's failure under Section 7.01 to
provide information or moneys required hereunder shall not be considered a
default by such successor hereunder. The appointment of a successor Master
Servicer shall not affect any liability of the predecessor Master Servicer which
may have arisen prior to its termination as Master Servicer, and the appointment
of a successor Special Servicer shall not affect any liability of the
predecessor Special Servicer which may have arisen prior to its termination as
Special Servicer. The Trustee or Master Servicer, as applicable, in its capacity
as successor to the Master Servicer or the Special Servicer, as the case may be,
shall not be liable for any of the representations and warranties of the Master
Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Master
Servicer or Special Servicer or for any losses incurred by the predecessor
Master Servicer pursuant to Section 3.06 hereunder, nor shall the Trustee or the
Master Servicer, as applicable, be required to purchase any Mortgage Loan
hereunder solely as a result of its obligations as successor Master Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Master Servicer shall be entitled to the
Servicing Fees and all fees relating to the Mortgage Loans or Companion Loans
which the Master Servicer would have been entitled to if the Master Servicer had
continued to act hereunder, including but not limited to any income or other
benefit from any Permitted Investment pursuant to Section 3.06, and subject to
Section 3.11, the Master Servicer as successor to the Special Servicer shall be
entitled to the Special Servicing Fees to which the Special Servicer would have
been entitled if the Special Servicer had continued to act hereunder. Should the
Trustee or the Master Servicer, as applicable, succeed to the capacity of the
Master Servicer or the Special Servicer, as the case may be, the Trustee or the
Master Servicer, as applicable, shall be afforded the same standard of care and
liability as the Master Servicer or the Special Servicer, as applicable,
hereunder notwithstanding anything in Section 8.01 to the contrary, but only
with respect to actions taken by it in its role as successor Master Servicer or
successor Special Servicer, as the case may be, and not with respect to its role
as Trustee or Master Servicer, as applicable, hereunder. Notwithstanding the
above, the Trustee may, if it shall be unwilling to act as successor to the
Master Servicer, or shall, if it is unable to so act, or if the Trustee is not
approved as a servicer by each Rating Agency, or if the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights so request in writing to the Trustee, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution which meets the criteria set forth in Section 6.04
and otherwise herein, as the successor to the Master Servicer or the Special
Servicer, as applicable, hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer or Special
Servicer hereunder. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption in writing by
the successor to the Master Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter and
upon confirmation from the Rating Agencies that such appointment will not result
in the downgrade, withdrawal or qualification of the ratings of any Class of
Certificates (or any class of Serviced Companion Loan Securities), and which
appointment has been approved by the Directing Certificateholder, such approval
not to be unreasonably withheld. Pending appointment of a successor to the
Master Servicer or the Special Servicer hereunder, unless the Trustee or the
Master Servicer, as applicable, shall be prohibited by law from so acting, the
Trustee or the Master Servicer, as applicable, shall act in such capacity as
herein above provided. In connection with such appointment and assumption of a
successor to the Master Servicer or Special Servicer as described herein, the
Trustee or the Master Servicer, as applicable, may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it and
such successor shall agree; provided, however, that no such compensation with
respect to a successor Master Servicer or successor Special Servicer, as the
case may be, shall be in excess of that permitted the terminated Master Servicer
or Special Servicer, as the case may be, hereunder. The Trustee, the Master
Servicer or the Special Servicer (whichever is not the terminated party) and
such successor shall take such action, consistent with this Agreement, as shall
be necessary to effectuate any such succession. Any costs and expenses
associated with the transfer of the servicing function (other than with respect
to a termination without cause) under this Agreement shall be borne by the
predecessor Master Servicer or Special Servicer, as applicable.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of the Master Servicer or the Special Servicer pursuant to Section
6.04, any termination of the Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer or the
Special Servicer pursuant to Section 7.02, the Paying Agent shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders (and, if a Serviced Whole Loan is affected, the
related Serviced Companion Noteholders) notice of such occurrence, unless such
default shall have been cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 66(2)/3% of the Voting Rights allocated to
each Class of Certificates affected by any Event of Default hereunder may waive
such Event of Default within 20 days of the receipt of notice from the Paying
Agent of the occurrence of such Event of Default; provided, however, that an
Event of Default under clause (i) of Section 7.01(a) may be waived only by all
of the Certificateholders of the affected Classes. Upon any such waiver of an
Event of Default, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. Upon any such waiver of an
Event of Default by Certificateholders, the Trustee shall be entitled to recover
all costs and expenses incurred by it in connection with enforcement action
taken with respect to such Event of Default prior to such waiver from the Trust
Fund. No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that the
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within five Business Days following such failure by the Master Servicer with
respect to Servicing Advances resulting in an Event of Default under Section
7.01(a)(iii) hereof to the extent a Responsible Officer of the Trustee has
actual knowledge of such failure with respect to such Servicing Advances and (y)
by noon, New York City time, on the related Distribution Date with respect to
P&I Advances pursuant to the Paying Agent's notice of failure pursuant to
Section 4.03(a) unless such failure has been cured. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the Master
Servicer's rights with respect to Advances hereunder, including, without
limitation, the Master Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Master Servicer's default in its obligations hereunder); provided,
however, that if Advances made by the Trustee and the Master Servicer shall at
any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and the interest thereon
hereunder shall be applied entirely to the Advances outstanding to the Trustee,
until such Advances shall have been repaid in full, together with all interest
accrued thereon, prior to reimbursement of the Master Servicer for such
Advances. The Trustee shall be entitled to conclusively rely on any notice given
with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent. (a) The
Trustee and the Paying Agent, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee and the Paying Agent
contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer or another Person, and
accepted by the Trustee or the Paying Agent in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available via its internet
website initially located at "xxx.xxxxxxx.xxx" to the Companion Holders all
reports that the Paying Agent has made available to Certificateholders under
this Agreement to the extent such reports relate to the related Companion Loan.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee or the Paying Agent of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Master Servicer or the Special Servicer
(unless the Trustee is acting as Master Servicer or Special Servicer, as
the case may be, in which case the Trustee shall only be responsible for
its own actions as Master Servicer or Special Servicer) or of the
Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and
in the Certificates, other than the acknowledgments of the Trustee or the Paying
Agent in Sections 2.02 and 2.05 and the signature, if any, of the Certificate
Registrar and Authenticating Agent set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, the Master Servicer or the
Special Servicer, as the case may be, and the Trustee or the Paying Agent assume
no responsibility for their correctness. Neither the Trustee nor the Paying
Agent makes any representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature, if any, of the
Trustee or the Paying Agent set forth thereon) or of any Mortgage Loan or
related document. Neither the Trustee nor the Paying Agent shall be accountable
for the use or application by the Depositor of any of the Certificates issued to
it or of the proceeds of such Certificates, or for the use or application of any
funds paid to the Depositor in respect of the assignment of the Mortgage Loans
to the Trust Fund, or any funds deposited in or withdrawn from the Certificate
Account or any other account by or on behalf of the Depositor, the Master
Servicer, the Special Servicer or in the case of the Trustee, the Paying Agent
(unless the Trustee is acting as Paying Agent). The Trustee and the Paying Agent
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer and
accepted by the Trustee or the Paying Agent, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates. The
Trustee or the Paying Agent, each in its individual capacity, not as Trustee or
Paying Agent, may become the owner or pledgee of Certificates, and may deal with
the Depositor, the Master Servicer, the Special Servicer, the Initial Purchaser
and the Underwriters in banking transactions, with the same rights it would have
if it were not Trustee or the Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent. (a) As compensation for the
performance of their respective duties hereunder, the Trustee will be paid the
Trustee Fee equal to the Trustee's portion of one month's interest at the
Trustee Fee Rate, which shall cover recurring and otherwise reasonably
anticipated expenses of the Trustee. The Trustee Fee shall be paid monthly on a
Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan, the
Trustee Fee shall accrue from time to time at the Trustee's portion of the
Trustee Fee Rate and shall be computed on the basis of the Stated Principal
Balance of such Mortgage Loan and a 360-day year consisting of twelve 30-day
months. The Trustee Fee (which shall not be limited to any provision of law in
regard to the compensation of a trustee of an express trust) shall constitute
the Trustee's sole form of compensation for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. No Trustee Fee shall be
payable with respect to the Companion Loans.
(b) The Trustee, the Paying Agent (in each case, including in its
individual capacity) and any director, officer, employee or agent of the Trustee
and the Paying Agent, respectively, shall be entitled to be indemnified and held
harmless by the Trust Fund (to the extent of amounts on deposit in the
Certificate Account or Lower-Tier Distribution Account from time to time)
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement, and expenses incurred in becoming successor
Master Servicer or successor Special Servicer, to the extent not otherwise paid
hereunder) arising out of, or incurred in connection with, any act or omission
of the Trustee or the Paying Agent, respectively, relating to the exercise and
performance of any of the powers and duties of the Trustee or the Paying Agent,
respectively, hereunder; provided, however, that none of the Trustee or the
Paying Agent, nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
or the Paying Agent, respectively, in the normal course of the Trustee or the
Paying Agent, respectively, performing its duties in accordance with any of the
provisions hereof, which are not "unanticipated expenses of the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
or the Paying Agent's, respectively, obligations and duties hereunder, or by
reason of negligent disregard of such obligations or duties, or as may arise
from a breach of any representation, warranty or covenant of the Trustee or the
Paying Agent, respectively, made herein. The provisions of this Section 8.05(b)
shall survive the termination of this Agreement and any resignation or removal
of the Trustee or the Paying Agent, respectively, and appointment of a successor
thereto. The foregoing indemnity shall also apply to the Paying Agent in its
capacities of Certificate Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and Paying Agent.
The Trustee and the Paying Agent hereunder shall at all times be, and will be
required to resign if it fails to be, (i) a corporation, national bank, national
banking association or a trust company, organized and doing business under the
laws of any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Master Servicer or the Special Servicer (except
during any period when the Trustee is acting as, or has become successor to, the
Master Servicer or the Special Servicer, as the case may be, pursuant to Section
7.02), (ii) an institution insured by the Federal Deposit Insurance Corporation
and (iii) with respect to the Trustee only, an institution whose long-term
senior unsecured debt is rated "AA-" by S&P and "Aa3" by Xxxxx'x (or such entity
as would not, as evidenced in writing by such Rating Agency, result in the
qualification, downgrading or withdrawal of any of the ratings then assigned
thereby to the Certificates or any class of Serviced Companion Loan Securities);
provided that the Trustee shall not cease to be eligible to serve as such based
on a failure to satisfy such rating requirements so long as the Trustee
maintains a long-term unsecured debt rating of no less than "A+" from S&P and
"A1" from Xxxxx'x and a short-term unsecured debt rating of at least "A-1" by
S&P (or such rating as would not, as evidenced in writing by such Rating Agency,
result in a qualification, downgrading or withdrawal of any of the ratings
assigned to the Certificates or any class of Serviced Companion Loan
Securities).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC and the Lower-Tier REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent. (a) The Trustee and 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 Servicer, the Special Servicer, the Swap Counterparty
and the Trustee or the Paying Agent, as applicable, and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor Trustee or paying agent acceptable to the
Master Servicer and the Directing Certificateholder by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee or
Paying Agent and to the successor Trustee or paying agent. A copy of such
instrument shall be delivered to the Master Servicer, the Special Servicer, the
Certificateholders, the Swap Counterparty and the Trustee or Paying Agent, as
applicable, by the Depositor. If no successor Trustee or paying agent shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee or Paying Agent may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 (and in the case of
the Paying Agent, Section 5.07) and shall fail to resign after written request
therefor by the Depositor or the Master Servicer, or if at any time the Trustee
or Paying Agent shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or the Paying Agent or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or Paying Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if the Trustee or Paying Agent
(if different than the Trustee) shall fail (other than by reason of the failure
of either the Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
or Paying Agent's, as applicable, reasonable control), to timely publish any
report to be delivered, published or otherwise made available by the Trustee or
Paying Agent pursuant to Section 4.02 and such failure shall continue unremedied
for a period of five days, or if the Trustee or Paying Agent fails to make
distributions required pursuant to Section 3.05(c), 4.01 or 9.01, then the
Depositor may remove the Trustee or Paying Agent, as applicable, and appoint a
successor Trustee or paying agent acceptable to the Master Servicer or paying
agent acceptable to the Trustee or Paying Agent, as applicable, by written
instrument, in duplicate, which instrument shall be delivered to the Trustee or
Paying Agent so removed and to the successor Trustee or paying agent in the case
of the removal of the Trustee or Paying Agent. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor Trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee or Paying Agent so removed and one complete set
to the successor so appointed. A copy of such instrument shall be delivered to
the Depositor, the Special Servicer and the remaining Certificateholders by the
Master Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent. (a) Any successor
Trustee or Paying Agent appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer, the Special
Servicer and to its predecessor Trustee or Paying Agent an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent shall become effective and such successor
Trustee or Paying Agent without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee or
Paying Agent herein. The predecessor Trustee shall deliver to the successor
Trustee all Mortgage Files and related documents and statements held by it
hereunder (other than any Mortgage Files at the time held on its behalf by a
Custodian, which Custodian, at Custodian's option shall become the agent of the
successor Trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor Trustee all such rights, powers, duties and
obligations, and to enable the successor Trustee to perform its obligations
hereunder.
(b) No successor Trustee or successor Paying Agent shall, as
applicable, accept appointment as provided in this Section 8.08 unless at the
time of such acceptance such successor Trustee or successor Paying Agent, as
applicable, shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee or
successor Paying Agent as provided in this Section 8.08, the Master Servicer
shall mail notice of the succession of such trustee or paying agent, as
applicable, to the Depositor and the Certificateholders. If the Master Servicer
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or successor Paying Agent, as applicable, such successor
Trustee or successor Paying Agent shall cause such notice to be mailed at the
expense of the Master Servicer.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent. Any
Person into which the Trustee or the 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 the Trustee or the Paying Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee or the Paying Agent shall be the successor of the
Trustee or the Paying Agent, as applicable, hereunder; provided, that, in the
case of the Trustee, such successor Person shall be eligible under the
provisions of Section 8.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee or the Paying Agent, as applicable, will
provide notice of such event to the Master Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the Master
Servicer and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. All co-trustee fees
shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians. The Trustee may, with the
consent of the Master Servicer, appoint one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Trustee. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus of at least $15,000,000 and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage File
and shall not be the Depositor or any Affiliate of the Depositor. Each Custodian
shall be subject to the same obligations and standard of care as would be
imposed on the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian. Any
Custodian appointed hereunder must maintain a fidelity bond and errors and
omissions policy in an amount customary for Custodians which serve in such
capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Paying Agent and the Trustee three
copies of any private placement memorandum or other disclosure document used by
the Depositor or its Affiliate in connection with the offer and sale of the
Class of Certificates to which such Non-Registered Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee and the Paying Agent, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Paying Agent and the Trustee a
copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Paying Agent (or with respect to item (ii)(j)
below, the Trustee) shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance notice, make
available during normal business hours for review by any Holder of a
Certificate, the Depositor, the Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Paying Agent (or the Trustee, if
applicable) believes such disclosure is appropriate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other disclosure
document relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Paying Agent and
(ii) in all cases (in the case of clause (ii) also to a Serviced Companion
Noteholder with respect to a Serviced Whole Loan and any Rating Agency rating
the related Serviced Companion Loan Securities) (a) this Agreement and any
amendments hereto entered into pursuant to Section 12.01, (b) all statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, (c) all Officer's Certificates delivered to
the Paying Agent and the Trustee since the Closing Date pursuant to Section
11.09, (d) all accountants' reports delivered to the Trustee and the Paying
Agent since the Closing Date pursuant to Section 11.11, (e) any inspection
report prepared by the Master Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee and the Paying Agent and Master
Servicer in respect of each Mortgaged Property pursuant to Section 3.12(a), (f)
as to each Mortgage Loan and Companion Loan pursuant to which the related
Mortgagor is required to deliver such items or the Special Servicer has
otherwise acquired such items, the most recent annual operating statement and
rent roll of the related Mortgaged Property and financial statements of the
related Mortgagor and any other reports of the Mortgagor collected by the Master
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Paying Agent pursuant to Section 3.12(c), together with the accompanying written
reports to be prepared by the Special Servicer and delivered to the Paying Agent
pursuant to Section 3.12(b), (g) any and all notices, reports and Environmental
Assessments delivered to the Paying Agent with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan and Companion Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Mortgage Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan and
Companion Loan entered into by the Master Servicer or the Special Servicer and
delivered to the Paying Agent pursuant to Section 3.20 (but only for so long as
the affected Mortgage Loan and Companion Loan is part of the Trust Fund), (i)
any and all Officer's Certificates delivered to the Paying Agent to support the
Master Servicer's determination that any P&I Advance or Servicing Advance was
or, if made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance, as the case may be, (j) any and all of the Mortgage Loan and Companion
Loan documents contained in the Mortgage File, (k) any and all Appraisals
obtained pursuant to the definition of "Appraisal Reduction" herein, (l)
information regarding the occurrence of Servicing Transfer Events as to the
Mortgage Loans and (m) any and all Sub-Servicing Agreements and any amendments
thereto and modifications thereof. Copies of any and all of the foregoing items
will be available from the Paying Agent upon request; provided, however, that
the Paying Agent (or the Trustee, if applicable) shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such copies, except in the case of copies provided to the Directing
Certificateholder or the Rating Agencies, which shall be free of charge (except
for extraordinary or duplicate requests). In addition, without limiting the
generality of the foregoing, any holder of a Nonregistered Certificate may upon
request from the Paying Agent obtain a copy of any factual report (other than
the Asset Status Report) delivered to the Rating Agencies under this Agreement.
Nothing contained in this Section 8.12(a) shall be construed to limit the
reports and information described on Exhibit M attached hereto and required to
be delivered to the Directing Certificateholder without charge.
(b) The Paying Agent shall make available to certain financial
market publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc. on a monthly basis all CMSA reports and any other reports
required to be delivered by the Paying Agent pursuant to Article IV hereof. If
any such information is provided on or before December 26, 2007, the Paying
Agent shall make the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions, Inc.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Master Servicer,
the Special Servicer, the Paying Agent and the Serviced Companion Noteholders
for the benefit of the Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States of America, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent. (a)
The Paying Agent hereby represents and warrants to the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Serviced Companion
Noteholders and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Paying Agent is a national banking association duly
organized under the laws of the United States of America, duly organized,
validly existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent;
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Paying Agent of its obligations under this Agreement,
and which, if not obtained would not have a materially adverse effect on
the ability of the Paying Agent to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer and the Trustee (other than
the obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the final payment (or related Advance) or
other liquidation of the last Mortgage Loan or REO Property subject thereto or
(ii) the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, the Master Servicer or the Holders of
the Class LR Certificates, in that order of priority, of all the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund at
a price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of the Trust Fund's portion of each REO Property, if any,
included in the Trust Fund (such Appraisals in clause (a)(2) to be conducted by
an Independent MAI-designated appraiser selected and mutually agreed upon by the
Master Servicer and the Trustee, and approved by more than 50% of the Voting
Rights of the Classes of Certificates then outstanding (other than the
Controlling Class unless the Controlling Class is the only Class of Certificates
then outstanding)) (which approval shall be deemed given unless more than 50% of
such Certificateholders object within 20 days of receipt of notice thereof) and
(3) the reasonable out-of-pocket expenses of the Master Servicer with respect to
such termination, unless the Master Servicer is the purchaser of such Mortgage
Loans, minus (b) solely in the case where the Master Servicer is effecting such
purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to the Master Servicer in respect of such Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase) or (iii)
voluntary exchange by the Sole Certificateholder of all the outstanding
Certificates (other than the Class R and Class LR Certificates) for the
remaining Mortgage Loans and REO Properties in the Trust Fund pursuant to the
terms of the immediately succeeding paragraph; provided, however, 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. James's, living on the
date hereof.
Following the date on which the Class A, Class A-M, Class A-MFL,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K Certificates are retired (and provided that there is only one
Holder of the then outstanding Certificates (other than the Residual
Certificates)), 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 the Trust Fund's portion of each REO Property remaining in
the Trust Fund as contemplated by clause (iii) of the first paragraph of this
Section 9.01 by giving written notice to all the parties hereto no later than 60
days prior to the anticipated date of exchange. In the event that the Sole
Certificateholder elects to exchange all of its Certificates (other than the
Residual Certificates) for all of the Mortgage Loans and the Trust Fund's
portion of each REO Property remaining in the Trust in accordance with the
preceding sentence, such Sole Certificateholder, not later than the Distribution
Date on which the final distribution on the Certificates is to occur, shall
deposit in the Certificate Account an amount in immediately available funds
equal to all amounts due and owing to the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Paying Agent hereunder through the date of
the liquidation of the Trust Fund that may be withdrawn from the Certificate
Account, or an escrow account acceptable to the respective parties hereto,
pursuant to Section 3.05(a) or that may be withdrawn from the Distribution
Account pursuant to Section 3.05(a), but only to the extent that such amounts
are not already on deposit in the Certificate Account. In addition, the Master
Servicer shall transfer all amounts required to be transferred to the Lower-Tier
Distribution Account on the P&I Advance Date related to such Distribution Date
in which the final distribution on the Certificates is to occur from the
Certificate Account pursuant to the first paragraph of Section 3.04(b)
(provided, however, that if a Serviced Whole Loan is secured by REO Property,
the Trust Fund's portion of the REO Property which is being purchased pursuant
to the foregoing, the portion of the above-described purchase price allocable to
such Trust Fund's portion of REO Property shall initially be deposited into the
related REO Account). Upon confirmation that such final deposits have been made
and following the surrender of all its Certificates (other than the Residual
Certificates) on the final Distribution Date, the Trustee shall, upon receipt of
a Request for Release from the Master Servicer, release or cause to be released
to the Sole Certificateholder or any designee thereof, the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Section 9.02. Solely for federal income tax purposes, the Sole
Certificateholder shall be deemed to have purchased the assets of the Lower-Tier
REMIC for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Class X Certificates and the Residual
Certificates), plus accrued, unpaid interest with respect thereto, and the
Trustee shall credit such amounts against amounts distributable in respect of
such Certificates and Related Uncertificated Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent and the Companion Paying Agent shall terminate with respect to any
Companion Loan to the extent (i) its related Serviced Whole Loan has been paid
in full or is no longer part of the Trust Fund and (ii) no amounts payable by
the related Companion Holder to or for the benefit of the Trust or any party
hereto in accordance with the related Intercreditor Agreement remain due and
owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee, the Paying Agent and the
other parties hereto no later than 60 days prior to the anticipated date of
purchase; provided, however, that the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates may
so elect to purchase all of the Mortgage Loans and the Trust Fund's portion of
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and the Trust Fund's portion of any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Master Servicer or the Special Servicer purchases, or the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchase, all of
the Mortgage Loans and the Trust Fund's portion of each REO Property remaining
in the Trust Fund in accordance with the preceding sentence, the Master
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, as applicable, shall deposit in the
Lower-Tier Distribution Account not later than the P&I Advance Date relating to
the Distribution Date on which the final distribution on the Certificates is to
occur, an amount in immediately available funds equal to the above-described
purchase price (exclusive of any portion thereof payable to any Person other
than the Certificateholders pursuant to Section 3.05(a), which portion shall be
deposited in the Certificate Account). In addition, the Master Servicer shall
transfer to the Lower-Tier Distribution Account all amounts required to be
transferred thereto on such P&I Advance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held for
future distribution and, without duplication, pay to the Swap Counterparty any
Class A-MFL Net Swap Payment as required by Section 3.32(c). Upon confirmation
that such final deposits and payments have been made, the Trustee shall release
or cause to be released to the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Master Servicer, the Special Servicer, the Holders of the Controlling Class
or the Holders of the Class LR Certificates, as applicable, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Master Servicer, and then the Holders of the
Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to the Certificateholders, the Swap
Counterparty, the Serviced Companion Noteholders and each Rating Agency and, if
not previously notified pursuant to this Section 9.01, to the other parties
hereto mailed (a) in the event such notice is given in connection with the
purchase of all of the Mortgage Loans and each REO Property remaining in the
Trust Fund, not earlier than the 15th day and not later than the 25th day of the
month next preceding the month of the final distribution on the Certificates, or
(b) otherwise during the month of such final distribution on or before the P&I
Advance Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account (and with respect to any amounts payable to
the Class A-MFL Regular Interest, from the Upper-Tier Distribution Account to
the Floating Rate Account), in each case pursuant to Section 3.04(b), and upon
presentation and surrender of the Certificates by the Certificateholders on the
final Distribution Date, the Paying Agent shall distribute to each
Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account (or, in the case of the Class
A-MFL Certificates, amounts then on deposit in the Floating Rate Account after
payment of any Class A-MFL Net Swap Payment to the Swap Counterparty, as
specified in Section 4.01(k)) that are allocable to payments on the Class of
Certificates so presented. Amounts transferred from the Lower-Tier Distribution
Account to the Upper-Tier Distribution Account as of the final Distribution Date
(exclusive of any portion of such amounts payable or reimbursable to any Person
pursuant to clause (ii) of Section 3.05(e)) shall be allocated for these
purposes, in the amounts and in accordance with the priority set forth in
Sections 4.01(b), 4.01(d) and 4.01(e) and shall be distributed in termination
and liquidation of the Uncertificated Lower-Tier Interests and the Class LR
Certificates in accordance with Sections 4.01(b), 4.01(d) and 4.01(e). Any funds
not distributed on such Distribution Date shall be set aside and held uninvested
in trust for the benefit of the Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed of
in accordance with this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements. (a) In the event
the Master Servicer or the Special Servicer purchases, or the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchase, all of
the Mortgage Loans and the Trust Fund's portion of each REO Property remaining
in the Trust Fund as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, which meet
the definition of a "qualified liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as
applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Paying Agent shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class LR Certificates (in the case of the Lower-Tier REMIC) and the Class
R Certificates (in the case of the Upper-Tier REMIC) all cash on hand
(other than cash retained to meet claims), and the Trust Fund and each of
the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that
time.
(b) In the event the Trust Fund is to be terminated while the Swap
Contract is still in effect, the Paying Agent shall promptly notify the Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of the Swap Contract will be reduced to zero on
such date. Based on the date of termination, the Paying Agent shall calculate
the Class A-MFL Net Swap Payment, if any, as specified in Section 3.32, and
prior to any final distributions to the Holders of the Class A-MFL Certificates,
pursuant to Section 9.01, shall pay such Class A-MFL Net Swap Payment, if any,
to the Swap Counterparty. In the event that any fees (including termination
fees) are payable to the Swap Counterparty in connection with such termination,
such fees will be payable to the Swap Counterparty solely from amounts remaining
in the Floating Rate Account after all distributions to the Class A-MFL
Certificates are made pursuant to Section 9.01.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Paying Agent shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates (other than the
Class A-MFL Certificates) and the Class A-MFL Regular Interest shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicer nor the Trustee shall permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Lower-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the (i) Class R and (ii) Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the (i) Upper-Tier REMIC and
(ii) the Lower-Tier REMIC, respectively. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the (i) Class R and (ii)
Class LR Certificates hereby agrees to irrevocably appoint the Paying Agent as
their agent to perform all of the duties of the "tax matters person" for the (i)
Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Trustee without any right of reimbursement therefor.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions and the Trustee shall
assist the Paying Agent to the extent reasonably requested by the Paying Agent
to do so. Neither the Master Servicer nor the Special Servicer shall knowingly
or intentionally take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
or (ii) result in the imposition of a tax upon the Lower-Tier REMIC or the
Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but
not including the tax on "net income from foreclosure property") (either such
event, an "Adverse REMIC Event") unless the Paying Agent receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the Paying Agent determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Paying Agent or the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC created hereunder, endanger such status or, unless the Paying
Agent determines in its sole discretion to indemnify the Trust Fund against such
tax, result in the imposition of such a tax (not including a tax on "net income
from foreclosure property"). The Trustee shall not take or fail to take any
action (whether or not authorized hereunder) as to which the Paying Agent has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. The Paying
Agent may consult with counsel to make such written advice, and the cost of same
shall be borne by the party seeking to take the action not expressly permitted
by this Agreement, but in no event at the expense of the Paying Agent or the
Trustee. At all times as may be required by the Code, the Paying Agent will to
the extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of each of the Lower-Tier
REMIC and the Upper-Tier REMIC as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Paying Agent in writing), and shall remit to the Master Servicer such
reserved amounts as the Master Servicer shall request in order to pay such
taxes. Except as provided in the preceding sentence, the Master Servicer shall
withdraw from the Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
the Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization shall not
prevent the Paying Agent from contesting, at the expense of the Trust Fund
(other than as a consequence of a breach of its obligations under this
Agreement), any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
Paying Agent is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any "prohibited transaction"
under Section 860F(a) of the Code or the amount of any taxable contribution to
the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup Day that is
subject to tax under Section 860G(d) of the Code and use such income or amount,
to the extent necessary, to pay such prohibited transactions tax. To the extent
that any such tax (other than any such tax paid in respect of "net income from
foreclosure property") is paid to the Internal Revenue Service or applicable
state or local tax authorities, the Paying Agent shall retain an equal amount
from future amounts otherwise distributable to the Holders of Residual
Certificates (as applicable) and shall distribute such retained amounts, (x) in
the case of the Uncertificated Lower-Tier REMIC Interests, to the Upper-Tier
REMIC to the extent they are fully reimbursed for any Collateral Support Deficit
arising therefrom and then to the Holders of the Class LR Certificates in the
manner specified in Section 4.01(b) and (y) in the case of the Upper-Tier REMIC,
to the Holders of Class A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q, Class T, Class NR, Class X-1 and Class X-2 Certificates and
the Class A-MFL Regular Interest, as applicable, in the manner specified in
Section 4.01(a), to the extent they are fully reimbursed for any Collateral
Support Deficit arising therefrom and then to the Holders of the Class R
Certificates. None of the Trustee, the Paying Agent, the Master Servicer or the
Special Servicer shall be responsible for any taxes imposed on the Lower-Tier
REMIC or the Upper-Tier REMIC except to the extent such taxes arise as a
consequence of a breach of their respective obligations under this Agreement
which breach constitutes willful misfeasance, bad faith, or negligence by such
party.
(h) The Paying Agent shall, for federal income tax purposes,
maintain or cause to be maintained books and records with respect to each of the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the Paying Agent and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class A-MFL, Class X-2 and Residual Certificates) or the Class A-MFL Regular
Interest representing a "regular interest" in the Upper-Tier REMIC and by which
the Lower-Tier Principal Amount of each Class of Uncertificated Lower-Tier
Interests representing a "regular interest" in the Lower-Tier REMIC would be
reduced to zero is the Rated Final Distribution Date. The "latest possible
maturity date" of the Class X-2 Certificates is the Class X-2 Termination Date.
(l) None of the Trustee, the Paying Agent, the Master Servicer or
the Special Servicer, as applicable, shall sell, dispose of or substitute for
any of the Mortgage Loans (except in connection with (i) the default, imminent
default or foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by foreclosure or deed in
lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of the Trust Fund pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement) or
acquire any assets for the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC or sell or dispose of any investments in the Certificate Account or the
REO Account for gain unless it has received an Opinion of Counsel that such
sale, disposition or substitution will not (a) affect adversely the status of
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Trustee, the Paying Agent, the Master Servicer or the Special Servicer, as
applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC to be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(a) The Paying Agent may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Paying Agent shall not be relieved of any of its duties or obligations under
this Article X by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent. (a) The Depositor shall provide or cause to be
provided to the Paying Agent within ten (10) days after the Depositor receives a
request from the Paying Agent, all information or data that the Paying Agent
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumptions and projected cash flow of the Certificates.
(b) The Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Paying Agent in order to enable it to perform its
duties hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Paying
Agent may appoint at the Paying Agent's expense, one or more REMIC
Administrators, which shall be authorized to act on behalf of the Paying Agent
in performing the functions set forth in Section 10.01 herein. The Paying Agent
shall cause any such REMIC Administrator to execute and deliver to the Paying
Agent an instrument in which such REMIC Administrator shall agree to act in such
capacity, with the obligations and responsibilities herein. The appointment of a
REMIC Administrator shall not relieve the Paying Agent from any of its
obligations hereunder, and the Paying Agent shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Paying Agent and must be organized and doing business
under the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Paying Agent hereby agrees to act in such capacity in accordance with the
terms hereof. If Xxxxx Fargo Bank, N.A. is removed as Paying Agent, then Xxxxx
Fargo Bank, N.A. shall be terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Paying Agent may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.04, the Paying Agent may
appoint a successor REMIC Administrator, in which case the Paying Agent shall
given written notice of such appointment to the Master Servicer and the
Depositor and shall mail notice of such appointment to all Certificateholders;
provided, however, that no successor REMIC Administrator shall be appointed
unless eligible under the provisions of this Section 10.04. Any successor REMIC
Administrator upon acceptance of its appointment hereunder shall become vested
with all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as REMIC Administrator. No
REMIC Administrator shall have responsibility or liability for any action taken
by it as such at the direction of the Paying Agent.
[End of Article X]
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. The Depositor shall not
exercise its rights to request delivery of information or other performance
under these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act
and, in each case, the rules and regulations of the Commission thereunder;
provided that in all instances the reports and certificates contemplated by
Sections 11.09, 11.10 and 11.11 shall be provided to the Rating Agencies as
required thereunder; provided, however, that the Trustee and Paying Agent shall
be deemed to have satisfied any delivery requirements to the Rating Agencies
thereunder by making such reports and certificates available on its internet
website. The parties hereto acknowledge that interpretations of the requirements
of Regulation AB may change over time, due to interpretive guidance provided by
the Commission or its staff, and agree to comply with requests made by the
Depositor in good faith for delivery of information under these provisions on
the basis of evolving interpretations of Regulation AB. In connection with the
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC20, Commercial
Mortgage Pass-Through Certificates, Series 2007-CIBC20, each of the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent shall cooperate
fully with the Depositor and the Paying Agent, as applicable, to deliver or make
available to the Depositor or the Paying Agent (including any of its assignees
or designees), any and all statements, reports, certifications, records and any
other information (in its possession or reasonably attainable) necessary in the
good faith determination of the Depositor to permit the Depositor to comply with
the provisions of Regulation AB, together with such disclosures relating to the
Master Servicer, the Special Servicer, the Trustee and the Paying Agent, as
applicable, and any Sub-Servicer, or the servicing of the Mortgage Loans,
reasonably believed by the Depositor to be necessary in order to effect such
compliance. For purposes of this Article XI, to the extent any party has an
obligation to exercise commercially reasonable efforts to cause a third party to
perform, such party hereunder shall not be required to bring any legal action
against such third party in connection with such obligation.
Section 11.02 Succession; Subcontractors. (a) As a condition to the
succession to the Master Servicer and Special Servicer or to any Sub-Servicer as
servicer or sub-servicer under this Agreement by any Person (i) into which the
Master Servicer and Special Servicer or such Sub-Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer and Special Servicer or to any Sub-Servicer, the Master Servicer and
Special Servicer shall provide to the Depositor and the Paying Agent, at least
15 calendar days prior to the effective date of such succession or appointment
(or such shorter period as is agreed to by the Depositor), (x) written notice to
the Depositor of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Depositor, all information relating
to such successor reasonably requested by the Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act); provided, however that if disclosing such information prior to
such effective date would violate any applicable law or confidentiality
agreement, the Master Servicer or Special Servicer, as the case may be, shall
submit such disclosure to the Depositor no later than the first Business Day
after the effective date of such succession or appointment.
(b) Each of the Master Servicer, the Special Servicer, the
Sub-Servicer, the Trustee and the Paying Agent (each of the Master Servicer, the
Special Servicer, the Trustee and the Paying Agent and each Sub-Servicer, for
purposes of this paragraph, a "Servicer") is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. Such Servicer
shall promptly upon request provide to the Depositor a written description (in
form and substance satisfactory to the Depositor) of the role and function of
each Subcontractor utilized by such Servicer, specifying (i) the identity of
each Subcontractor that is a Servicing Function Participant and (ii) the
elements of the Servicing Criteria that will be addressed in assessments of
compliance provided by each such Subcontractor. As a condition to the
utilization by such Servicer of any Subcontractor determined to be a Servicing
Function Participant, such Servicer shall (i) with respect to any such
Subcontractor engaged by such Servicer that is an Initial Sub-Servicer, use
commercially reasonable efforts to cause, and (ii) with respect to any other
subcontractor with which it has entered into a servicing relationship, cause
such Subcontractor used by such Servicer for the benefit of the Depositor and
the Trustee to comply with the provisions of Section 11.10 and Section 11.11 of
this Agreement to the same extent as if such Subcontractor were such Servicer.
With respect to any Servicing Function Participant engaged by such Servicer that
is an Initial Sub-Servicer, such Servicer shall be responsible for using
commercially reasonable efforts to obtain, and with respect to each other
Servicing Function Participant engaged by such Servicer, such Servicer shall
obtain from each such Servicing Function Participant and deliver to the
applicable Persons any assessment of compliance report and related accountant's
attestation required to be delivered by such Subcontractor under Section 11.10
and Section 11.11, in each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor, other than an Initial Sub-Servicer in connection with the
performance of any of its duties under this Agreement, such Servicer shall be
responsible for determining whether such Subcontractor is a "servicer" within
the meaning of Item 1101 of Regulation AB and whether any such Subcontractor
meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a
Servicer determines, pursuant to the preceding sentence, that such Subcontractor
is a "servicer" within the meaning of Item 1101 of Regulation AB and meets the
criteria in Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such
Subcontractor shall be deemed to be a Sub-Servicer for purposes of this
Agreement, the engagement of such Sub-Servicer shall not be effective unless and
until notice is given to the Depositor and the Trustee of any such Sub-Servicer
and Subservicing Agreement. Other than with respect to the Initial Sub-Servicer,
no Subservicing Agreement shall be effective until 15 days after such written
notice is received by the Depositor and the Paying Agent (or such shorter period
as is agreed to by the Depositor). Such notice shall contain all information
reasonably necessary to enable the Paying Agent to accurately and timely report
the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such
reports under the Exchange Act are required to be filed under the Exchange Act).
(d) In connection with the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee, the
Trustee shall notify the Depositor and each Rating Agency, at least 30 calendar
days prior to the effective date of such succession or appointment (or if such
prior notice is violative of applicable law or any applicable confidentiality
agreement, no later than one (1) Business Day after such effective date of
succession) and shall furnish to the Depositor in writing and in form and
substance reasonably satisfactory to the Depositor, all information reasonably
necessary for the Paying Agent to accurately and timely report, pursuant to
Section 11.07, the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act).
(e) Notwithstanding anything to the contrary contained in this
Article XI, in connection with any Initial Sub-Servicer and/or any Mortgage Loan
that is the subject of an Initial Sub-Servicing Agreement, with respect to all
matters related to Regulation AB, the Master Servicer shall not have any
obligation other than to use commercially reasonable efforts to cause such
Initial Sub-Servicer to comply with its obligations under such Initial
Sub-Servicing Agreement.
Section 11.03 Filing Obligations. (a) The Master Servicer, the
Special Servicer, the Paying Agent and the Trustee shall reasonably cooperate
with the Depositor in connection with the satisfaction of the Trust's reporting
requirements under the Exchange Act. Pursuant to Sections 11.04, 11.05, 11.06
and 11.07 of this Agreement, the Paying Agent shall prepare for execution by the
Depositor any Forms 8-K, 10-D and 10-K required by the Exchange Act, in order to
permit the timely filing thereof, and the Paying Agent shall file (via the
Commission's Electronic Data Gathering and Retrieval System ("XXXXX")) such
Forms executed by the Depositor.
Each party hereto shall be entitled to rely on the information in
the Prospectus Supplement with respect to the identity of any Sponsor, credit
enhancer, derivative provider or "significant obligor" as of the Closing Date
other than with respect to itself or any information required to be provided by
it or indemnified for by it pursuant to any separate agreement.
(b) In the event that the Paying Agent is unable to timely file with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the delivery deadlines
set forth in this Agreement, the Paying Agent will promptly notify the
Depositor. In the case of Forms 10-D and 10-K, the Depositor, the Master
Servicer, the Paying Agent and Trustee will thereupon cooperate to prepare and
file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as applicable, pursuant to
Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Paying Agent will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure information on
the next succeeding Form 10-D to be filed for the Trust. In the event that any
previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the
Paying Agent will notify the Depositor, and such other parties as needed and the
parties hereto will cooperate with the Paying Agent 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 officer of
the Depositor. The parties to this Agreement acknowledge that the performance by
the Paying Agent of its duties under this Section 11.03 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 the parties observing all applicable
deadlines in the performance of their duties under Sections 11.03, 11.04, 11.05,
11.06, 11.07, 11.08, 11.09, 11.10 and 11.11 of this Agreement. The Paying Agent
shall have no liability for any loss, expense, damage, claim arising out of or
with respect to any failure to properly prepare, arrange for execution and/or
timely file any such Form 15, Form 12b-25 or any amendments to Form 8-K, Form
10-D or Form 10-K, where such failure results from the Paying Agent's inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Paying Agent 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 Paying Agent shall file each Form 10-D with a copy of the related
Statement to Certificateholders attached thereto. Any disclosure in addition to
the Statement to Certificateholders that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall, pursuant to the following paragraph
be reported by the parties set forth on Exhibit Y to the Depositor and the
Paying Agent and approved by the Depositor, and the Paying Agent will have no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, absent such reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Exhibit Y hereto, within 5 calendar days after
the related Distribution Date, (i) certain parties to this Agreement identified
on Exhibit Y hereto shall be required to provide to the Paying Agent and the
Depositor, to the extent a Regulation AB Servicing Officer or Responsible
Officer, as the case may be, has actual knowledge, in XXXXX compatible format,
or in such other format as otherwise agreed upon by the Paying Agent, the
Depositor and such providing parties, the form and substance of any Additional
Form 10-D Disclosure, if applicable, (ii) the parties listed on Exhibit Y hereto
shall include with such Additional Form 10-D Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit BB and (iii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D.
Neither the Trustee nor the Paying Agent has any duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit Y of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-D Disclosure information. The Depositor will be
responsible for any reasonable expenses incurred by the Trustee or Paying Agent
in connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
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 Paying Agent 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 Paying
Agent in writing, no later than the 5th calendar day after the related
Distribution Date with respect to the filing of a report on Form 10-D if the
answer to the questions should be "no." The Paying Agent shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
(b) After preparing the Form 10-D, the Paying Agent shall forward
electronically a copy of the Form 10-D to the Depositor for review no later than
10 calendar days after the related Distribution Date or, if the 10th calendar
day after the related Distribution Date is not a Business Day, the immediately
preceding Business Day. Within two Business Days after receipt of such copy, but
no later than the 2 Business Days prior to the 15th calendar day after the
Distribution Date, the Depositor shall notify the Paying Agent in writing (which
may be furnished electronically) of any changes to or approval of such Form 10-D
and, a duly authorized officer of the Depositor shall sign the Form 10-D and
return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Paying Agent.
Alternatively, if the Paying Agent agrees in its sole discretion, the Depositor
may deliver to the Paying Agent manually signed copies of a power of attorney
meeting the requirements of Item 601(b)(24) of Regulation S-K under the
Securities Act, and certified copies of a resolution of the Depositor's board of
directors authorizing such power of attorney, each to be filed with each Form
10-D, in which case the Paying Agent shall sign such Forms 10-D as attorney in
fact for the Depositor. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Paying Agent will follow the
procedures set forth in Section 11.03(b). Promptly after filing with the
Commission, the Paying Agent will make available on its internet website a final
executed copy of each Form 10-D filed by the Paying Agent. The signing party at
the Depositor can be contacted at Xxxxxx Xxxxx, Vice President and Secretary,
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000, with a copy to
Xxxxxx Xxxxx, Vice President, X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number:
(000) 000-0000. The parties to this Agreement acknowledge that the performance
by the Paying Agent of its duties under this Section 11.04(b) related to the
timely preparation and filing of Form 10-D is contingent upon such parties
observing all applicable deadlines in the performance of their duties under this
Section 11.04(b). Neither the Trustee nor the Paying Agent shall have any
liability for any loss, expense, damage, or claim arising out of or with respect
to any failure to properly prepare, arrange for execution and/or timely file
such Form 10-D, where such failure results from the Paying Agent's inability or
failure to receive, on a timely basis, any information from any party to this
Agreement needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust (it being understood that the fiscal year for the
Trust ends on December 31 of each year) or such earlier date as may be required
by the Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the
Paying Agent 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
Paying Agent within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for the Master Servicer, the
Special Servicer and each Additional Servicer, as described under Section
11.09;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent, each Additional Servicer and each Servicing
Function Participant utilized by the Master Servicer, the Special
Servicer, the Paying Agent or Trustee, as described under Section 11.10;
and
(B) if any such report on assessment of compliance with
servicing criteria described under Section 11.10 identifies any
material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is
not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not
included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, the Master Servicer, the Special Servicer, the Paying
Agent each Additional Servicer and each Servicing Function Participant
utilized by the Master Servicer, the Special Servicer, the Paying Agent or
the Trustee, as described under Section 11.11; and
(B) if any registered public accounting firm attestation
report described under Section 11.11 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why
such report is not included; and
(iv) a certification in the form attached hereto as Exhibit V, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (i) through (iv) above that is
required to be included on Form 10-K ("Additional Form 10-K Disclosure") shall,
pursuant to the following paragraph be reported by the parties set forth on
Exhibit Z to the Depositor and the Paying Agent and approved by the Depositor
and the Paying Agent will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, absent such reporting,
direction and approval.
As set forth on Exhibit Z hereto, no later than March 15 of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2008, (i) the parties listed on Exhibit Z shall be required to
provide to the Paying Agent and the Depositor, to the extent a Regulation AB
Servicing Officer or Responsible Officer, as the case may be, has actual
knowledge, in XXXXX compatible format or in such other format as otherwise
agreed upon by the Paying Agent, the Depositor and such providing parties, the
form and substance of any Additional Form 10-K Disclosure, if applicable, (ii)
the parties listed on Exhibit Z hereto shall include with such Additional Form
10-K Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit BB and (iii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. Neither the Trustee nor the Paying Agent has
any duty under this Agreement to monitor or enforce the performance by the
parties listed on Exhibit Z of their duties under this paragraph or proactively
solicit or procure from such parties any Additional Form 10-K Disclosure
information. The Depositor will be responsible for any reasonable expenses
incurred by the Trustee and the Paying Agent in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
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 Paying Agent 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 Paying
Agent in writing, no later than March 15th with respect to the filing of a
report on Form 10-K, if the answer to the questions should be "no." The Paying
Agent shall be entitled to rely on such representations in preparing, executing
and/or filing any such report.
(b) After preparing the Form 10-K, the Paying Agent shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
6 Business Days prior to the 10-K Filing Deadline. Within three Business Days
after receipt of such copy, but no later than March 25th, the Depositor shall
notify the Paying Agent in writing (which may be furnished electronically) of
any changes to or approval of such Form 10-K and the senior officer in charge of
securitization for the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Paying Agent at such time. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Paying Agent shall follow the procedures set forth in Section
11.03(b). Promptly after filing with the Commission, the Paying Agent will make
available on its internet website a final executed copy of each Form 10-K filed
by the Paying Agent. The signing party at the Depositor can be contacted at
Xxxxxx Xxxxx, Vice President and Secretary, X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, telecopy number: (000) 000-0000, with a copy to Xxxxxx Xxxxx, Vice
President, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000.
The parties to this Agreement acknowledge that the performance by the Paying
Agent of its duties under this Section 11.05 related to the timely preparation
and filing of Form 10-K is contingent upon the parties to this Agreement (and
any Additional Servicer or Servicing Function Participant engaged or utilized,
as applicable, by any such parties) observing all applicable deadlines in the
performance of their duties under this Section 11.05. Neither the Trustee nor
the Paying Agent shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-K, where such failure results from the
Paying Agent's inability or failure or receive, on a timely basis, any
information from the parties to this Agreement (or any Sub-Servicer or Servicing
Function Participant engaged by any such parties) needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit V
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Master
Servicer, the Special Servicer, the Trustee and the Paying Agent shall provide,
and (i) with respect to each Initial Sub-Servicer engaged by the Master
Servicer, the Special Servicer, as applicable, that is a Servicing Function
Participant use commercially reasonable efforts to cause such Initial Sub
Servicer to provide, and (ii) with respect to each other Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans, shall cause such Servicing Function Participant to
provide, to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person"), on or before March 15 of each year commencing in March
2008, a certification in the form attached hereto as Exhibit W-1, W-2 and W-3
(each, a "Performance Certification"), as applicable, on which the Certifying
Person, the entity for which the Certifying Person acts as an officer (if the
Certifying Person is an individual), and such entity's officers, directors and
Affiliates (collectively with the Certifying Person, "Certification Parties")
can reasonably rely. In addition, in the event that any Companion Loan (other
than a Non-Serviced Companion Loan) is deposited into a commercial mortgage
securitization (an "Other Securitization"), each Reporting Servicer, upon not
less than 30 days prior written request, shall provide to the Person who signs
the Xxxxxxxx-Xxxxx Certification with respect to such Other Securitization a
certification in form and substance similar to applicable Performance
Certification (which shall address the matters contained in the applicable
Performance Certification, but solely with respect to the related Companion
Loan) on which such Person, the entity for which the Person acts as an officer
(if the Person is an individual), and such entity's officers, directors and
Affiliates can reasonably rely. With respect to the Non-Serviced Companion
Loans, the Paying Agent will use its reasonable efforts to procure a
Xxxxxxxx-Xxxxx back-up certification from the applicable Non-Serviced Master
Servicer, Non-Serviced Special Servicer and Non-Serviced Trustee in form and
substance similar to a Performance Certification. The senior officer in charge
of securitization for the Depositor shall serve as the Certifying Person on
behalf of the Trust. In addition, each Reporting Servicer shall execute a
reasonable reliance certificate to enable the Certification Parties to rely upon
each (i) annual compliance statement provided pursuant to Section 11.09, (ii)
annual report on assessment of compliance with servicing criteria provided
pursuant to Section 11.10 and (iii) accountant's report provided pursuant to
Section 11.11, and shall include a certification that each such annual
compliance statement or report discloses any deficiencies or defaults described
to the registered public accountants of such Reporting Servicer to enable such
accountants to render the certificates provided for in Section 11.11. In the
event any Reporting Servicer is terminated or resigns pursuant to the terms of
this Agreement, or any applicable sub-servicing agreement or primary servicing
agreement, as the case may be, such Reporting Servicer shall provide a
certification to the Certifying Person pursuant to this Section 11.06 with
respect to the period of time it was subject to this Agreement or the applicable
sub-servicing or primary servicing agreement, as the case may be. Each such
Performance Certification shall be provided in XXXXX compatible format, or in
such other format agreed upon by the Depositor, the Paying Agent and such
providing parties.
Notwithstanding anything to the contrary contained in this Section
11.06, with respect to each year in which the Trust is not subject to the
reporting requirements of the Exchange Act, none of the parties required to
deliver any certification under this Section 11.06 shall be obligated to do so.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor and to the extent it
receives the Form 8-K Disclosure Information described below, the Paying Agent
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 following
paragraph be reported by the parties set forth on Exhibit AA to the Depositor
and the Paying Agent and approved by the Depositor, and the Paying Agent will
have no duty or liability for any failure hereunder to determine or prepare any
Form 8-K Disclosure Information or any Form 8-K, absent such reporting,
direction and approval.
As set forth on Exhibit AA hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon on the
2nd Business Day after the occurrence of a Reportable Event (i) the parties set
forth on Exhibit AA hereto shall be required to provide to the Depositor and the
Paying Agent, to the extent a Regulation AB Servicing Officer or Responsible
Officer, as the case may be, has actual knowledge, in XXXXX compatible format or
in such other format agreed upon by the Depositor, the Paying Agent and such
providing parties any Form 8-K Disclosure Information, if applicable, (ii) the
parties listed on Exhibit AA hereto shall include with such Form 8-K Disclosure
Information, an Additional Disclosure Notification in the form attached hereto
as Exhibit BB and (iii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the parties listed on Exhibit AA of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable expenses incurred by the Trustee and the Paying Agent in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to this
paragraph.
After preparing the Form 8-K, the Paying Agent shall forward
electronically a copy of the Form 8-K to the Depositor for review no later than
noon on the 3rd Business Day after the Reportable Event, but in no event earlier
than 24 hours after having received the Form 8-K Disclosure Information pursuant
to the immediately preceding paragraph. Promptly, but no later than the close of
business on the third Business Day after the Reportable Event, the Depositor
shall notify the Paying Agent in writing (which may be furnished electronically)
of any changes to or approval of such Form 8-K. No later than noon on the 4th
Business Day after the Reportable Event, a duly authorized officer of the
Depositor shall sign the Form 8-K and return an electronic or fax copy of such
signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Paying Agent. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Paying Agent will follow the
procedures set forth in Section 11.03(b). Promptly after filing with the
Commission, the Paying Agent will, make available on its internet website a
final executed copy of each Form 8-K filed by the Paying Agent. The signing
party at the Depositor can be contacted at Xxxxxx Xxxxx, Vice President and
Secretary, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000,
with a copy to Xxxxxx Xxxxx, Vice President, X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, telecopy number: (000) 000-0000. The parties to this Agreement
acknowledge that the performance by the Paying Agent of its duties under this
Section 11.07 related to the timely preparation and filing of Form 8-K is
contingent upon such parties observing all applicable deadlines in the
performance of their duties under this Section 11.07. Neither the Trustee nor
the Paying Agent shall have any 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
Paying Agent's inability or failure to receive, on a timely basis, any
information from the parties to this Agreement needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
The Master Servicer, the Special Servicer, the Paying Agent and the
Trustee shall promptly notify (and the Master Servicer and the Special Servicer
shall (i) with respect to each Initial Sub-Servicer that is an Additional
Servicer engaged by such Master Servicer, Special Servicer, Trustee or Paying
Agent use commercially reasonable efforts to cause such Additional Servicer to
promptly notify and (ii) with respect to each other Additional Servicer with
which it has entered into a servicing relationship with respect to the Mortgage
Loans (other than a party to this Agreement) cause such Additional Servicer to
promptly notify) the Depositor and the Paying Agent, but in no event later than
noon on the 2nd Business Day after its occurrence, of any Reportable Event
applicable to such party to the extent a Regulation AB Servicing Officer or
Responsible Officer, as the case may be, has actual knowledge, in XXXXX
compatible format.
Section 11.08 Form 15 Filing. On or prior to January 30 of the first
year in which the Paying Agent is able to do so under applicable law, the Paying
Agent shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If, after the filing of a Form 15 Suspension Notification, at the end of
any fiscal year for the Trust the number of Certificateholders of record exceeds
the number set forth in Section 15(d) of the Exchange Act or the regulations
promulgated pursuant thereto which would cause the Trust to again become subject
to the reporting requirements of the Exchange Act, the Paying Agent shall
recommence preparing and filing reports on Forms 10-K, 10-D and 8-K as required
pursuant to Section 11.04, Section 11.05 and Section 11.07; provided, that if
the Paying Agent re-commences the preparing and filing of Exchange Act reports,
it may, as soon as permitted by the Exchange Act, file another Form 15
Suspension Notification.
Section 11.09 Annual Compliance Statements. The Master Servicer, the
Special Servicer, the Trustee and the Paying Agent (each, a "Certifying
Servicer") shall deliver to (and each such party shall (i) with respect to each
Additional Servicer engaged by such Master Servicer, Special Servicer, Trustee
or Paying Agent that is an Initial Sub-Servicer, use commercially reasonable
efforts to cause such Additional Servicer to deliver to and (ii) with respect to
each other Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans, cause such Additional Servicer
to deliver to) the Depositor and the Paying Agent on or before March 15 of each
year, commencing in March 2008, an Officer's Certificate, in the form attached
hereto as Exhibit EE, stating, as to the signer thereof, that (A) a review of
such Certifying Servicer's activities during the preceding calendar year or
portion thereof and of such Certifying Servicer's performance under this
Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, has been made under such
officer's supervision and (B) to the best of such officer's knowledge, based on
such review, such Certifying Servicer has fulfilled all its obligations under
this Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Such Officer's
Certificate shall be provided in XXXXX compatible format, or in such other
format agreed upon by the Depositor, the Paying Agent and such providing
parties. The Master Servicer, the Special Servicer, the Trustee and the Paying
Agent shall, and each such party shall (i) with respect to each Additional
Servicer engaged by such Master Servicer, Special Servicer, Trustee or Paying
Agent that is an Initial Sub-Servicer, use commercially reasonable efforts to
cause such Additional Servicer, and (ii) with respect to each other Additional
Servicer with which it has entered into a servicing relationship with respect to
the Mortgage Loans, cause such Additional Servicer to forward a copy of each
such statement (or, in the case of the Trustee and the Paying Agent, make a copy
of each such statement available on its internet website) to the Rating Agencies
and the Directing Certificateholder. With respect to the Non-Serviced Companion
Loans, the Paying Agent will use its reasonable efforts to procure such
Officer's Certificate from the applicable Non-Serviced Master Servicer,
Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance
similar to the form attached hereto as Exhibit EE. Promptly after receipt of
each such Officer's Certificate, the Depositor may review each such Officer's
Certificate and, if applicable, consult with the Master Servicer, the Special
Servicer, the Trustee or the Paying Agent, as applicable, as to the nature of
any failures by the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, respectively, or any related Additional Servicer with which the
Master Servicer, the Special Servicer, the Trustee or the Paying Agent, as
applicable, has entered into a servicing relationship with respect to the
Mortgage Loans in the fulfillment of any of the Master Servicer's, Special
Servicer's, Trustee's and Paying Agent's or Additional Servicer's obligations
hereunder or under the applicable sub-servicing or primary servicing agreement.
The obligations of the Master Servicer, the Special Servicer, the Trustee and
the Paying Agent and each Additional Servicer under this Section apply to the
Master Servicer, the Special Servicer, the Trustee and the Paying Agent and each
Additional Servicer that serviced a Mortgage Loan during the applicable period,
whether or not the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent or Additional Servicer is acting as the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent or Additional Servicer at the
time such Officer's Certificate is required to be delivered. None of the Master
Servicer, Special Servicer or Additional Servicer shall be required to cause the
delivery of any such statement (which delivery requirement will be deemed to
have been satisfied if such statement is made available by the applicable party
on its website; provided that a copy of such statement will be promptly
forwarded by such party to any Rating Agency upon request) until April 15 in any
given year so long as it has received written confirmation from the Depositor
that a report on Form 10-K is not required to be filed in respect of the Trust
for the preceding calendar year.
In the event the Master Servicer, the Special Servicer, the Trustee
or the Paying Agent is terminated or resigns pursuant to the terms of this
Agreement, such party shall provide, and each of the Master Servicer and the
Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by
such party that is an Additional Servicer that resigns or is terminated under
any applicable servicing agreement, use its reasonable efforts to cause such
Additional Servicer to provide and (ii) with respect to any other Additional
Servicer engaged by such party that resigns or is terminated under any
applicable servicing agreement, cause such Additional Servicer to provide, an
annual statement of compliance pursuant to this Section 11.09 with respect to
the period of time that the Master Servicer, the Special Servicer, the Trustee
or the Paying Agent was subject to this Agreement or the period of time that
such Additional Servicer was subject to such other servicing agreement.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. (a) On or before March 15 of each year, commencing in March
2008, the Master Servicer, the Special Servicer, the Trustee and the Paying
Agent, each at its own expense, shall furnish (and each such party shall (i)
with respect to each Initial Sub-Servicer engaged by such Master Servicer,
Special Servicer, Trustee or Paying Agent that is a Servicing Function
Participant, use commercially reasonable efforts to cause such Servicing
Function Participant to furnish and (ii) with respect to each other Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, cause such Servicing Function Participant to
furnish) to the Trustee, the Paying Agent and the Depositor, with a copy to the
Rating Agencies (which copy shall be deemed furnished by the Trustee and Paying
Agent when made available on its internet website), a report substantially in
the form of Exhibit FF or such other form provided by such Reporting Servicer
that complies in all material respects with the requirements of Item 1122 of
Regulation AB, on an assessment of compliance with the Servicing Criteria
applicable to it that contains (A) a statement by such Reporting Servicer of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such Reporting Servicer used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
Reporting Servicer's assessment of compliance with the Relevant Servicing
Criteria as of and for the period ending the end of the fiscal year covered by
the Form 10-K required to be filed pursuant to Section 11.05, 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. With respect to the
Non-Serviced Companion Loans, the Paying Agent will use its reasonable efforts
to procure such report from the applicable Non-Serviced Master Servicer,
Non-Serviced Special Servicer and Non-Serviced Trustee in form and substance
similar to the form attached hereto as Exhibit FF. Such report shall be provided
in XXXXX compatible format, or in such other format agreed upon by the
Depositor, the Paying Agent and the Reporting Servicer.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address the Relevant
Servicing Criteria specified on a certification substantially in the form of
Exhibit X hereto delivered to the Depositor on the Closing Date. Promptly after
receipt of each such report, (i) the Depositor may review each such report and,
if applicable, consult with each Reporting Servicer as to the nature of any
material instance of noncompliance with the Servicing Criteria applicable to it
(and each Servicing Function Participant engaged or utilized by each Reporting
Servicer, as applicable), and (ii) the Trustee shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Exhibit X and notify the Depositor of any exceptions. None
of the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or
any Servicing Function Participant shall be required to cause the delivery of
any such assessments (which delivery requirement will be deemed to have been
satisfied if such assessments are made available by the applicable party on its
website; provided that a copy of such statement will be promptly forwarded by
such party to any Rating Agency upon request) until April 15 in any given year
so long as it has received written confirmation from the Depositor that a report
on Form 10-K is not required to be filed in respect of the Trust for the
preceding calendar year.
(b) The Master Servicer, the Special Servicer, the Trustee and the
Paying Agent and any Servicing Function Participant with which the Master
Servicer, Special Servicer, Trustee or Paying Agent has entered into a servicing
relationship hereby acknowledge and agree that the Relevant Servicing Criteria
set forth on Exhibit X is appropriately set forth with respect to such party.
(c) No later than 10 Business Days after the end of each fiscal year
for the Trust, the Master Servicer and the Special Servicer shall notify the
Trustee and the Depositor as to the name of each Additional Servicer engaged by
it and each Servicing Function Participant utilized by it, in each case other
than with respect to any Initial Sub-Servicer, and the Trustee and the Paying
Agent shall notify the Depositor as to the name of each Servicing Function
Participant utilized by it, in each case by providing an updated Exhibit DD, and
each such notice will specify what specific Servicing Criteria will be addressed
in the report on assessment of compliance prepared by such Servicing Function
Participant. When the Master Servicer, the Special Servicer, the Trustee and the
Paying Agent submit their assessments pursuant to Section 11.10(a), the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent, as applicable,
will also at such time include the assessment (and related attestation pursuant
to Section 11.11) of each Servicing Function Participant engaged by it.
In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide (and each of the Master Servicer and the
Special Servicer shall (i) with respect to an Initial Sub-Servicer engaged by
such Master Servicer or Special Servicer that is an Additional Servicer that
resigns or is terminated under any applicable servicing agreement, use its
reasonable efforts to cause such Additional Servicer and (ii) with respect to
any other Additional Servicer that resigns or is terminated under any applicable
servicing agreement, cause such Additional Servicer to provide) an annual
assessment of compliance pursuant to this Section 11.10, coupled with an
attestation as required in Section 11.11 with respect to the period of time that
the Master Servicer, the Special Servicer, the Trustee or the Paying Agent was
subject to this Agreement or the period of time that the Additional Servicer was
subject to such other servicing agreement.
Section 11.11 Annual Independent Public Accountants' Attestation
Report. On or before March 15 of each year, commencing in March 2008, the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent, each at its
own expense, shall cause (and the Master Servicer, the Special Servicer, the
Trustee and the Paying Agent shall (i) with respect to each Initial Sub-Servicer
engaged by such Master Servicer, Special Servicer, Trustee or Paying Agent that
is a Servicing Function Participant use commercially reasonable efforts to cause
such Servicing Function Participant to cause and (ii) with respect to each other
Servicing Function Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans cause such Servicing Function
Participant to cause) a registered public accounting firm (which may also render
other services to the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent or the applicable Servicing Function Participant, as the case may
be) and that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Trustee, the Paying Agent and the
Depositor, with a copy to the Rating Agencies and the Directing
Certificateholder (which copy shall be deemed furnished by the Trustee and
Paying Agent when made available on its internet website), to the effect that
(i) it has obtained a representation regarding certain matters from the
management of such Reporting Servicer, which includes an assertion that such
Reporting Servicer has complied with the Relevant Servicing Criteria applicable
to it 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 issuing an opinion as to whether such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria applicable to it
was fairly stated in all material respects. In the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Each such related
accountant's attestation report shall be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language. With respect to the Non-Serviced Companion Loans, the
Paying Agent will use its reasonable efforts to procure such report from the
applicable Non-Serviced Master Servicer, Non-Serviced Special Servicer and
Non-Serviced Trustee. Such report shall be provided in XXXXX compatible format,
or in such other format agreed upon by the Depositor, the Paying Agent and the
providing parties.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent or any Servicing Function
Participant, (i) the Depositor may review the report and, if applicable, consult
with the Master Servicer, the Special Servicer, the Trustee or the Paying Agent
as to the nature of any defaults by the Master Servicer, the Special Servicer,
the Trustee or any Servicing Function Participant with which it has entered into
a servicing relationship with respect to the Mortgage Loans, as the case may be,
in the fulfillment of any of the Master Servicer's, the Special Servicer's, the
Trustee's, the Paying Agent's or the applicable Servicing Function Participants'
obligations hereunder or under the applicable sub-servicing or primary servicing
agreement, and (ii) the Trustee shall confirm that each accountants' attestation
report submitted pursuant to this Section relates to an assessment of compliance
meeting the requirements of Section 11.10 and notify the Depositor of any
exceptions. None of the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent nor any Additional Servicer shall be required to deliver, or shall
be required to cause the delivery of (which delivery requirement will be deemed
to have been satisfied if such reports are made available by the applicable
party on its website; provided that a copy of such statement will be promptly
forwarded by such party to any Rating Agency upon request), such reports until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a Form 10-K is not required to be filed with respect to the
Trust for the preceding fiscal year.
Section 11.12 Indemnification. Each of the Master Servicer, the
Special Servicer, the Trustee and the Paying Agent shall indemnify and hold
harmless each Certification Party from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Certification Party
arising out of (i) an actual breach by the Master Servicer, the Special
Servicer, the Trustee or the Paying Agent, as the case may be, of its
obligations under this Article XI or (ii) negligence, bad faith or willful
misconduct on the part of the Master Servicer, the Special Servicer, the Trustee
or the Paying Agent in the performance of such obligations.
The Master Servicer, the Special Servicer, the Trustee and the
Paying Agent shall (i) with respect to any Initial Sub-Servicer engaged by the
Master Servicer, Special Servicer, Trustee or Paying Agent that is a Servicing
Function Participant or Additional Servicer, use commercially reasonable efforts
to cause such party to and (ii) with respect to each other Additional Servicer
and each Servicing Function Participant with which, in each case, it has entered
into a servicing relationship with respect to the Mortgage Loans to cause such
party to indemnify and hold harmless each Certification Party from and against
any and all claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments and any other costs, fees and expenses
incurred by such Certification Party arising out of (i) a breach of its
obligations to provide any of the annual compliance statements or annual
assessment of compliance reports or attestation reports pursuant to the
applicable sub-servicing or primary servicing agreement or (ii) negligence, bad
faith or willful misconduct on its part in the performance of such obligations
or (iii) any failure by a Servicer (as defined in Section 11.02(b)) to identify
a Servicing Function Participant pursuant to Section 11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee or the Paying Agent (the "Performing Party")
shall contribute to the amount paid or payable to the Certification Party as a
result of the losses, claims, damages or liabilities of the Certification Party
in such proportion as is appropriate to reflect the relative fault of the
Certification Party on the one hand and the Performing Party on the other in
connection with a breach of the Performing Party's obligations pursuant to
Sections 11.06, 11.09, 11.10 or 11.11 (or breach of its obligations under the
applicable sub-servicing or primary servicing agreement to provide any of the
annual compliance statements or annual servicing criteria compliance reports or
attestation reports) or the Performing Party's negligence, bad faith or willful
misconduct in connection therewith. The Master Servicer, the Special Servicer,
the Trustee and the Paying Agent shall (i) with respect to any Initial
Sub-Servicer engaged by the Master Servicer, Special Servicer, Trustee or Paying
Agent that is a Servicing Function Participant or Additional Servicer, use
commercially reasonable efforts to cause such party to and (ii) with respect to
each other Additional Servicer or Servicing Function Participant, in each case,
with which it has entered into a servicing relationship with respect to the
Mortgage Loans cause such party to agree to the foregoing indemnification and
contribution obligations. This Section 11.12 shall survive the termination of
this Agreement or the earlier resignation or removal of the Master Servicer, the
Special Servicer, the Trustee or the Paying Agent.
Section 11.13 Amendments. This Article XI may be amended by the
parties hereto pursuant to Section 12.01 for purposes of complying with
Regulation AB and/or to conform to standards developed within the commercial
mortgage-backed securities market and the Xxxxxxxx-Xxxxx Act without any
Opinions of Counsel, Officer's Certificates, Rating Agency confirmation with
respect to the Certificates or the Serviced Companion Loan Securities or the
consent of any Certificateholder, notwithstanding anything to the contrary
contained in this Agreement; provided that the reports and certificates required
to be prepared pursuant to Sections 11.09, 11.10 and 11.11 shall not be
eliminated without Rating Agency confirmation with respect to the Certificates
or the Serviced Companion Loan Securities.
Section 11.14 Regulation AB Notices. Any notice required to be
delivered by any of the Master Servicer, the Special Servicer, the Paying Agent
or the Trustee, as the case may be, to the Depositor pursuant to this Article XI
may be delivered via email (and additionally delivered via phone or telecopy),
notwithstanding the provisions of Section 12.05, to X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx, telecopy number: 000-000-0000, telephone number: 000-000-0000 and
email: Xxxxxx.x.xxxxx@xxxxxxxx.xxx, with a copy to Xxxxxx Xxxxx, Vice President
and Secretary, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000,
telephone number: 000 000-0000 and email: Xxxxx_xxxxxx@xxxxxxxx.xxx.
Section 11.15 Certain Matters Relating to the Future Securitization
of the Serviced Companion Loans. (a) Each of the Trustee, the Paying Agent, the
Master Servicer and the Special Servicer shall, and the Master Servicer and the
Special Servicer will use commercially reasonable efforts to cause any
sub-servicer appointed with respect to any Serviced Companion Loan to, upon
request or notice from a Mortgage Loan Seller (or a permitted transferee of such
Mortgage Loan Seller pursuant to the related Intercreditor Agreement), cooperate
with the Mortgage Loan Seller (or such permitted transferee) selling any
Serviced Companion Loan into a securitization that is required to comply with
Regulation AB (a "Regulation AB Companion Loan Securitization") and, to the
extent needed in order to comply with Regulation AB, provide to the Mortgage
Loan Seller (or such permitted transferee) information about itself that such
Mortgage Loan Seller reasonably requires to meet the requirements of Items 1117
and 1119 and paragraphs (b), (c)(3), (c)(4) and (c)(5) of Item 1108 of
Regulation AB and shall cooperate with such Mortgage Loan Seller to provide such
other information as may be necessary to comply with the requirements of
Regulation AB. Each of the Trustee, the Paying Agent, the Master Servicer and
the Special Servicer understands that such information may be included in the
offering material related to a Regulation AB Companion Loan Securitization and
agrees to negotiate in good faith an agreement (subject to the final sentence of
this sub-section) to indemnify and hold the related depositor and underwriters
involved in the offering of the related Certificates harmless for any costs,
liabilities, fees and expenses incurred by the depositor or such underwriters as
a result of any material misstatements or omissions in any such offering
material to the extent that such material misstatement or omission was made in
reliance upon any such information provided by the Trustee and the Paying Agent
(where such information pertains to Xxxxx Fargo Bank, N.A. individually and not
to any specific aspect of the Paying Agent's duties or obligations under this
Agreement), the Master Servicer (where such information pertains to Midland Loan
Services, Inc. individually and not to any specific aspect of such Master
Servicer's duties or obligations under this Agreement) and the Special Servicer
(where such information pertains to Centerline Servicing Inc. individually and
not to any specific aspect of the Special Servicer's duties or obligations under
this Agreement), as applicable, to such depositor, underwriters or Mortgage Loan
Seller (or permitted transferee) as required by this clause (a). Notwithstanding
the foregoing, to the extent that the information provided by the Trustee, the
Paying Agent, the Master Servicer or the Special Servicer, as applicable, for
inclusion in the offering materials related to such Regulation AB Companion Loan
Securitization is substantially and materially similar to the information
provided by such party with respect to the offering materials related to this
transaction, subject to any required changes due to any amendments to Regulation
AB or any changes in the interpretation of Regulation AB, such party shall be
deemed to be in compliance with this Section 11.15(a). Any indemnification
agreement executed by the Trustee, Paying Agent, Master Servicer or Special
Servicer in connection with the Regulation AB Companion Loan Securitization
shall be substantially similar to the related indemnification agreement executed
in connection with this Agreement. It shall be a condition precedent to any
party's obligations otherwise set forth above that the applicable Mortgage Loan
Seller (or permitted transferee) shall have (a) provided reasonable advance
notice of the exercise of its rights hereunder and (b) paid, or entered into
reasonable agreement to cause to be paid, the reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel) incurred by such party in
reviewing and/or causing the delivery of any disclosure, opinion of counsel or
indemnification agreement.
(b) Each of the Trustee, the Paying Agent, the Master Servicer and
the Special Servicer shall, and the Master Servicer and the Special Servicer
will use commercially reasonable efforts to cause any sub-servicer appointed
with respect to a Serviced Securitized Companion Loan to, upon request or notice
from such parties (which request or notice may be given once at the closing of
such Regulation AB Companion Loan Securitization instead of each time a filing
is required), cooperate with the depositor, trustee, certificate administrator
and master servicer for any Regulation AB Companion Loan Securitization in
preparing each Form 10-D and Form 10-K required to be filed by such Regulation
AB Companion Loan Securitization (until March 31 of the first year in which the
trustee or other applicable party for such Regulation AB Companion Loan
Securitization files a Form 15 Suspension Notice with respect to the related
trust) and shall provide to such depositor, trustee, certificate administrator
and master servicer within the time period set forth in the Other Pooling and
Servicing Agreement applicable to parties thereunder (so long as such time
period is no earlier than the time periods set forth herein) for such Regulation
AB Companion Loan Securitization such information relating to a Serviced
Securitized Companion Loan and itself as may be necessary for the depositor,
trustee, certificate administrator and master servicer of the Regulation AB
Companion Loan Securitization to comply with the reporting requirements of
Regulation AB and the Exchange Act; provided, however, that any parties to any
Regulation AB Companion Loan Securitization shall consult with the Trustee, the
Paying Agent, the Master Servicer and the Special Servicer (and Master Servicer
shall consult with any sub-servicer appointed with respect to the related
Serviced Whole Loan), and the Trustee, the Paying Agent, such Master Servicer
and the Special Servicer shall cooperate with such parties in respect of
establishing the time periods for preparation of the Form 10-D reports in the
documentation for such Regulation AB Companion Loan Securitization.
Notwithstanding the foregoing, to the extent the Trustee, the Paying Agent, the
Master Servicer or the Special Servicer, as the case may be, complies in all
material respects with the timing, reporting and attestation requirements
imposed on such party in Article XI of this Agreement (other than this Section
11.15) with respect to the comparable timing, reporting and attestation
requirements contemplated in this Section 11.15(b) with respect to such
Regulation AB Companion Loan Securitization, such party shall be deemed to be in
compliance with the provisions of this Section 11.15(b).
(c) Each of the Trustee, the Paying Agent, the Master Servicer and
the Special Servicer shall, and the Master Servicer and the Special Servicer
will use commercially reasonable efforts to cause any sub-servicer appointed
with respect to a Serviced Securitized Companion Loan to, upon request or notice
from such trustee or certificate administrator (which request or notice may be
given once at the closing of such Regulation AB Companion Loan Securitization
instead of each time a filing is required), provide the trustee or certificate
administrator, as applicable, under a Regulation AB Companion Loan
Securitization (until January 30 of the first year in which the trustee or
certificate administrator, as applicable, for such Regulation AB Companion Loan
Securitization files a Form 15 Suspension Notice with respect to the related
trust) information with respect to any event that is required to be disclosed
under Form 8-K with respect to a Serviced Securitized Companion Loan or itself
within two Business Days after the occurrence of such event of which it has
knowledge.
(d) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the Master Servicer and the
Special Servicer shall, and the Master Servicer and the Special Servicer will
use commercially reasonable efforts to cause any sub-servicer appointed with
respect to a Serviced Securitized Companion Loan to, upon request or notice from
such trustee or certificate administrator (which request or notice may be given
once at the closing of such Regulation AB Companion Loan Securitization instead
of each time a filing is required), provide, with respect to itself, to the
trustee or certificate administrator, as applicable, under such Regulation AB
Companion Loan Securitization, to the extent required pursuant to Item 1122 of
Regulation AB, (i) a report on an assessment of compliance with the servicing
criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii)
a registered accounting firm's attestation report on such Person's assessment of
compliance with the applicable servicing criteria to the extent required
pursuant to Item 1122(b) of Regulation AB and (iii) such other information as
may be required pursuant to Item 1122(c) of Regulation AB.
(e) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, the Paying Agent, the Master
Servicer and the Special Servicer shall, and the Master Servicer and the Special
Servicer will use commercially reasonable efforts to cause any sub-servicer
appointed with respect to a Serviced Securitized Companion Loan to, to the
extent required pursuant to Item 1123 of Regulation AB, deliver, with respect to
itself, to the trustee or certificate administrator under the such Regulation AB
Companion Loan Securitization, upon request or notice from such trustee (which
request or notice may be given once at the closing of such Regulation AB
Companion Loan Securitization instead of each time a filing is required), under
such Regulation AB Companion Loan Securitization a servicer compliance statement
signed by an authorized officer of such Person that satisfies the requirements
of Item 1123 of Regulation AB.
(f) Each of the Trustee, the Paying Agent, the Master Servicer and
the Special Servicer shall (severally but not jointly) indemnify (such indemnity
limited to each such party's respective failure described below) and hold the
related Mortgage Loan Seller (or permitted transferee), depositor, sponsor(s),
trustee, certificate administrator or master servicer under a Regulation AB
Companion Loan Securitization harmless for any costs, liabilities, fees and
expenses incurred by such Mortgage Loan Seller, depositor, sponsor(s), trustee,
certificate administrator or master servicer as a result of any failure by the
Trustee, the Paying Agent, the Master Servicer and the Special Servicer, as
applicable, to comply with the reporting requirements to the extent applicable
set forth under Sections 11.15(b), (c), (d) or (e) above.
Any subservicing agreement related to a Serviced Securitized
Companion Loan shall contain a provision requiring the related Sub-Servicer to
provide to the Master Servicer or Special Servicer, as applicable, information,
reports, statements and certificates with respect to itself and such Serviced
Securitized Companion Loan comparable to any information, reports, statements or
certificates required to be provided by the Master Servicer or Special Servicer
pursuant to this Section 11.15, even if such Sub-Servicer is not otherwise
required to provide such information, reports or certificates to any Person in
order to comply with Regulation AB. Such information, reports or certificates
shall be provided to the Master Servicer or Special Servicer, as applicable, no
later than two Business Days prior to the date on which such Master Servicer or
Special Servicer, as applicable, is required to deliver its comparable
information, reports, statements or certificates pursuant to this Section 11.15.
Section 11.16 Certain Matters Regarding Significant Obligors. It is
hereby acknowledged that the borrower under Mortgage Loan No. 1 identified as
Centro New-Plan Pool I on the Mortgage Loan Schedule is a significant obligor,
and, accordingly, Item 6 of Form 10-D and Item 1112(b) of Form 10-K provide for
the inclusion of updated net operating income of the related borrower, as
required by Item 1112(b) of Regulation AB, on each Form 10-D to be filed by the
Trust with respect to a Distribution Date immediately following the date in
which each financial statement of the significant obligor is required to be
delivered to the lender under the related Mortgage Loan documents (which, for
the avoidance of doubt, is seventy-five (75) days following the end of each
fiscal year, and thirty (30) days following the end of each fiscal quarter, as
applicable, as set forth in the related loan agreement), or on each Form 10-K
filed by the Trust, as applicable. Upon receipt of the updated net operating
income information, the Master Servicer shall update the following columns of
the CMSA Loan Periodic Update File for the applicable Distribution Date: BB, BP,
BT and XX (xxxxxxxxxxxxx xxxxxx 00, 00, 00-xxx 73).
In the event that the Master Servicer does not receive financial
information satisfactory to comply with Item 6 of Form 10-D or Item 1112(b) of
Form 10-K, as the case may be, of the significant obligor from the related
borrower within two (2) Business Days after the date such financial information
is required to be delivered under the related Mortgage Loan documents, the
Master Servicer shall notify the Depositor that it has not received them. The
Master Servicer shall use efforts consistent with the Servicing Standard (taking
into account, in addition, the ongoing reporting obligations of the Depositor
under the Exchange Act, but in no event requiring the Master Servicer to
initiate litigation) to continue to attempt to obtain such financial information
from the Borrower. The Master Servicer shall retain written evidence of each
instance in which it attempts to contact the Borrower to obtain the required
financial information and is unsuccessful and, within five Business Days prior
to the date in which a Form 10-D or Form 10-K, as applicable, is required to be
filed by the Trust, shall forward an Officer's Certificate evidencing its
attempts to obtain this information to the Trustee and the Depositor. This
Officer's Certificate should be addressed to the Trustee as follows: Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: SEC
Reporting Group, or e-mailed to xxx.xxx.xxxxxxxxxxxx@xxxxxxxxxx.xxx, and to the
Depositor as required by Section 11.14.
If the Trustee has not received financial information satisfactory
to comply with Item 6 of Form 10-D or Item 1112(b) of Form 10-K, as the case may
be, it shall include the following statement with respect to Item 6 on the
related Form 10-D or Item 1112(b) on the related Form 10-K: "The information
required for this [Item 6] [Item 1112(b)] rests with a person or entity which is
not affiliated with the registrant. Oral and written requests have been made on
behalf of the registrant, to the extent required under the related pooling and
servicing agreement, to obtain the information required for this [Item 6] [Item
1112 (b)], and the registrant has been unable to obtain such information to
include on this [Form 10-D] [Form 10-K] by the related filing deadline. The
information is therefore being omitted herefrom in reliance on Rule 12b-21 under
the Securities Exchange Act of 1934, as amended" or such other statement as
shall be required by the Depositor.
Notwithstanding anything contained in this Section 11.16, in the
event that the Paying Agent files a Form 15 Suspension Notification pursuant to
Section 11.08 of this Agreement and so long as the Trust is not subject to the
reporting requirements of the Exchange Act, the Master Servicer shall not be
required to fulfill its obligations under this Section 11.16.
[End of Article XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any
tax on the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC pursuant to the Code that would be a claim against the Trust Fund or
either of the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the
Trustee has received an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that (a) such action is necessary
or desirable to maintain such qualification or to avoid or minimize the
risk of the imposition of any such tax and (b) such action will not
adversely affect in any material respect the interests of any
Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to the related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates or class of Serviced Companion Loan Securities as evidenced
by a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto and (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency
and, in the case of a Serviced Companion Loan, a Rating Agency rating any
class of the related Serviced Companion Loan Securities, to such effect;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of the related Serviced
Companion Loan Securities, to such effect provided that such change shall
not result in the downgrade, withdrawal or qualification of the
then-current rating assigned to any Class of Certificates or class of
Serviced Companion Loan Securities, as evidenced by a letter from each
Rating Agency to such effect; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicer, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (b) such
modification does not adversely affect the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, or of the Grantor Trust as a grantor
trust, as evidenced by an Opinion of Counsel and (c) each Rating Agency
has delivered written confirmation that such modification would not result
in the downgrade, withdrawal or qualification of any of the then current
ratings of any Class of Certificates or class of Serviced Companion Loan
Securities;
provided that no such amendment (A) changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller or (B) materially and adversely affects the
holders of a Companion Loan without such Companion Holder's consent; and
provided, further, 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).
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66(2)/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities, amend the Servicing Standards.
(vi) significantly change the activities of the Trust (insofar as
such changes would adversely affect the status of the Trust as a
"qualifying special purpose entity" under FASB 140) without the consent of
the Holders of Certificates entitled to not less than 51% of all the
Voting Rights (without regard to Certificates held by the Depositor, any
Mortgage Loan Seller or any Affiliates and/or agents of the Depositor or
any Mortgage Loan Seller).
(c) Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment hereto without having first received an
Opinion of Counsel (at the Trust Fund's expense) to the effect that such
amendment is permitted hereunder and that such amendment or the exercise of any
power granted to the Master Servicer, the Depositor, the Special Servicer, the
Trustee, the Paying Agent or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or the Grantor Trust or cause
the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or
cause the Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and each Serviced Companion Noteholder and the Trustee and
shall furnish a copy of such amendment to each Rating Agency and any Rating
Agency rating any Serviced Companion Loan Securities.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 12.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates or any class of Serviced Companion Loan Securities.
(i) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Swap Counterparty or the Class A-MFL Certificates or the
rights of the Swap Counterparty under the Swap Contract or the rights of the
holders of the Class A-MFL Certificates without the consent of the Swap
Counterparty and 66?% of the Holders of the Class A-MFL Certificates. The
Trustee shall forward any proposed amendment to this Agreement to the Swap
Counterparty.
(j) Notwithstanding any other provision of this Agreement (other
than the next succeeding sentence), for purposes of the giving or withholding of
consents pursuant to this Section 12.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans. Any amendment contemplated by this Section 12.01 that adversely affects
the status of the Trust Fund as a "qualifying special purpose entity" under FASB
140 shall require consent of the Holders of Certificates entitled to at least
51% of the Voting Rights (without regard to Certificates held by the Depositor,
any Affiliate and/or agents of the Depositor, any Mortgage Loan Seller or any
Affiliate and/or agents of any Mortgage Loan Seller).
Section 12.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 12.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 12.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to a Mortgage Loan Seller, the Master Servicer and the
Trustee which shall be deemed to have been duly given only when received), to:
(i) in the case of the Depositor, X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (000) 000-0000, with a
copy to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Managing
Director and Associate General Counsel, telecopy number: (000) 000-0000; (ii) in
the case of the Master Servicer, Midland Loan Services, Inc., 00000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000, Attention: President; telecopy
number: (000) 000-0000; (iii) in the case of Centerline Servicing Inc., 0000 X.
X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx Xxxxxx,
telecopy number: (000) 000-0000, with a copy to Xxxxx Xxxxx, Esq., telecopy
number: (000) 000-0000; (iv) in the case of the Directing Certificateholder,
Centerline REIT Inc., 0000 X. X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxxxxx, telecopy number: (000) 000-0000, with a copy to Xxxxx
Xxxxx, Esq., telecopy number: (000) 000-0000; (v) in the case of the Trustee and
the Paying Agent, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust (CMBS), X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Trust Series 2007-CIBC20, telecopy number: (410)
715-2380; (vi) in the case of the Rating Agencies, (a) S&P Ratings Services, 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: CMBS Surveillance Group,
telecopy number: (000) 000-0000; (b) Xxxxx'x Investors Services, Inc., 00 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance Group, telecopy number: (000) 000-0000; and (c) Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (vii) in the case of the Mortgage
Loan Sellers, (a) JPMorgan Chase Bank, National Association, 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx, Vice President, telecopy number: (212)
834-6593; and (b) CIBC Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Real Estate Finance Group, telecopy number: (000) 000-0000;
(viii) in the case of any Companion Holder or any mezzanine lender, the address
set forth in the related Intercreditor Agreement; or, as to each such Person,
such other address as may hereafter be furnished by such Person to the parties
hereto in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Account, the Distribution Accounts, the Gain-on-Sale Reserve
Account, the Interest Reserve Account and, if established, the REO Account, and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 12.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
Section 12.08 Successors and Assigns; Third Party Beneficiaries. (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. The Swap
Counterparty, each Mortgage Loan Seller, each Companion Holder (and their
agents) and each depositor of a Regulation AB Companion Loan is an intended
third-party beneficiary to this Agreement in respect of the respective rights
afforded it hereunder. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
(b) Each of the Serviced Companion Noteholders shall be a
third-party beneficiary to this Agreement in respect to the rights afforded it
hereunder. Each of the Other Servicers and Other Trustees shall be a third-party
beneficiary to this Agreement in respect to all provisions herein expressly
relating to compensation, reimbursement or indemnification of such Other
Servicer and Other Trustee, and any provisions regarding reimbursement or
advances or interest thereon to such Other Servicer or Other Trustee.
(c) Each of the applicable Non-Serviced Trustee, Non-Serviced Master
Servicer and Non-Serviced Special Servicer in respect to a Non-Serviced
Companion Loan shall be a third-party beneficiary to this Agreement in respect
to its rights as specifically provided for herein and under the applicable
Non-Serviced Intercreditor Agreement.
Section 12.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 12.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency and the
Swap Counterparty (and any Rating Agency for any class of Serviced Companion
Loan Securities to the extent applicable to the Serviced Whole Loan) with
respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the Master
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement.
(b) The Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency (and any Rating
Agency for any class of Serviced Companion Loan Securities to the extent
applicable to the Serviced Whole Loan) copies of inspection reports and other
items delivered to each of the Master Servicer and Special Servicer pursuant to
Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of the Distribution Accounts and (ii)
the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Master Servicer and the
Special Servicer, as applicable, shall furnish to each Rating Agency (and any
Rating Agency for any class of Serviced Companion Loan Securities to the extent
applicable to the Serviced Whole Loan) with respect to each Mortgage Loan such
information as the Rating Agency shall reasonably request and which the Trustee,
the Paying Agent, the Master Servicer or Special Servicer, can reasonably
provide in accordance with applicable law and without waiving any
attorney-client privilege relating to such information or violating the terms of
this Agreement or any Mortgage Loan documents. The Trustee, the Master Servicer
and Special Servicer, as applicable, may include any reasonable disclaimer it
deems appropriate with respect to such information. Notwithstanding anything to
the contrary herein, nothing in this Section 12.10 shall require a party to
provide duplicative notices or copies to the Rating Agencies with respect to any
of the above listed items.
[End of Article XII]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.,
Depositor
By: /s/ Xxxxxxx Xxxxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.,
Master Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
CENTERLINE SERVICING INC.,
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
XXXXX FARGO BANK, N.A., not in its individual
capacity, but solely as Trustee and Paying
Agent
By: /s/Xxx Xxxxxxxxx
-------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 24th day of September, 2007, before me, a notary public in
and for said State, personally appeared Xxxxxxx Xxxxxxxxxxxx known to me to be a
Vice President of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Xxxxxxxx X. Xxxxxxxx
----------------------
Notary Public
[SEAL]
My commission expires:
02/04/10
-----------------------
STATE OF KANSAS)
) ss.:
COUNTY OF XXXXXXX)
On the 26th day of September 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxxx known to me to be a
Senior Vice President of Midland Loan Services, Inc., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Xxxxx Xxxxxx
------------------
Notary Public
[SEAL]
My commission expires:
01/30/10
-----------------------
STATE OF TEXAS)
) ss.:
COUNTY OF DALLAS)
On the 25th day of September, 2007, before me, a notary public in
and for said State, personally appeared Xxxxx X. Xxxxxxx known to me to be a CEO
of Centerline Servicing Inc., that executed the within instrument, and also
known to me to be the person who executed it on behalf of such corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Xxxxx Xxxxxx
-------------------
Notary Public
[SEAL]
My commission expires: February 14, 0000
XXXXX XX XXX XXXX)
) ss.:
COUNTY OF NEW YORK)
On the 28th day of September, 2007, before me, a notary public in
and for said State, personally appeared Xxx Xxxxxxxxx known to me to be a Vice
President of Xxxxx Fargo Bank, N.A., that executed the within instrument, and
also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Xxxxx X. Xxxxxx
---------------------
Notary Public
[SEAL]
My commission expires:
01/03/09
----------------
EXHIBIT A-1
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.2730%, MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $29,042,000
SPECIAL SERVICER: CENTERLINE SERVICING,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF SEPTEMBER 28, 2007
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: XXXXX FARGO BANK, N.A.
DEFINED HEREIN)
CUSIP NO.: 46631Q AA0
CLOSING DATE: SEPTEMBER 28, 2007
ISIN NO.: US46631QAA04
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032398642
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1-1
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $29,042,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.6290% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $105,103,000
SPECIAL SERVICER: CENTERLINE SERVICING,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF SEPTEMBER 28, 2007
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT PAYING AGENT: XXXXX FARGO BANK, N.A.
(AS DEFINED HEREIN)
CUSIP NO.: 46631Q AB8
CLOSING DATE: SEPTEMBER 28, 2007
ISIN NO.: US46631QAB86
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032398677
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-2-1
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $105,103,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.8190% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $208,581,000
SPECIAL SERVICERS: CENTERLINE SERVICING,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF SEPTEMBER 28, 2007
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: XXXXX FARGO BANK, N.A.
DEFINED HEREIN)
CUSIP NO.: 46631Q AC6
CLOSING DATE: SEPTEMBER 28, 2007
ISIN NO.: US46631QAC69
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032398715
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-3-1
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $208,581,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.7940% SUBJECT TO MASTER SERVICER: MIDLAND LOAN SERVICES,
A MAXIMUM RATE AS DESCRIBED IN THE INC.
POOLING AND SERVICING AGREEMENT
SPECIAL SERVICERS: CENTERLINE SERVICING,
DENOMINATION: $ [500,000,000] INC.
[491,709,000]
TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 28, 2007 PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46631Q AD4
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46631QAD43
CLOSING DATE: SEPTEMBER 28, 2007 COMMON CODE NO.: 032398731
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: A-4-1
OCTOBER 12, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $991,709,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-SB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.6880% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $84,435,000
SPECIAL SERVICER: CENTERLINE SERVICING,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF SEPTEMBER 28, 2007
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT PAYING AGENT: XXXXX FARGO BANK, N.A.
CLOSING DATE: SEPTEMBER 28, 2007 CUSIP NO.: 46631Q AE2
FIRST DISTRIBUTION DATE: ISIN NO.: US46631QAE26
OCTOBER 12, 2007
COMMON CODE NO.: 032398782
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-SB-1
OF THE CLASS A-SB CERTIFICATES
AS OF THE CLOSING DATE: $ 84,435,000
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-SB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-SB Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-SB Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-SB Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-1A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.7460% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $361,383,000
SPECIAL SERVICERS: CENTERLINE SERVICING,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF SEPTEMBER 28, 2007
TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: XXXXX FARGO BANK, N.A.
DEFINED HEREIN)
CUSIP NO.: 46631Q AF9
CLOSING DATE: SEPTEMBER 28, 2007
ISIN NO.: US46631QAF90
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032398812
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1A-1
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $361,383,000
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS X-2
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $ [500,000,000] INC.
[500,000,000] [500,000,000]
[500,000,000] [457,314,000] TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
CUSIP NO.: 46631Q AG7
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS ISIN NO.: US46631QAG73
DEFINED HEREIN)
COMMON CODE: 032398847
CLOSING DATE: SEPTEMBER 28, 2007
CERTIFICATE NO.: X-2-1
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-2 CERTIFICATES AS OF
THE CLOSING DATE: $2,457,314,000
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Master Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-2 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-2 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount, and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any tax on
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust Fund or either of
the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the Trustee has
received an Opinion of Counsel (at the expense of the party requesting such
amendment) to the effect that such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of any
such tax and such action will not adversely affect in any material respect the
interests of any Certificateholder or any Companion Holder; to change the timing
and/or nature of deposits into the Certificate Account, any Distribution
Accounts or REO Account, provided that the P&I Advance Date shall in no event be
later than the Business Day prior to related Distribution Date, such change
shall not, as evidenced by an Opinion of Counsel (at the expense of the party
requesting such amendment or at the expense of the Trust Fund if the requesting
party is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and such
change shall not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates or Serviced Companion
Loan Securities as evidenced by a letter from each Rating Agency to such effect;
to modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling
and Servicing Agreement or any other provision hereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC "residual
interests," provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any
of the Certificateholders (other than the Transferor) to be subject to a federal
tax caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency and,
in the case of a Serviced Companion Loan, a Rating Agency rating any class of
Serviced Companion Loan Securities, to such effect; to amend or supplement any
provision of the Pooling and Servicing Agreement to the extent necessary to
maintain the rating or ratings assigned to each Class of Certificates by each
Rating Agency, and, in the case of a Serviced Companion Loan, a Rating Agency
rating any class of Serviced Companion Loan Securities, to such effect; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates or Serviced
Companion Loan Securities, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Sections 3.05 and 3.19 of the Pooling
and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, or the Grantor Trust as a grantor trust, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause
the Grantor Trust to fail to qualify as a grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-M
THIS CLASS A-M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $219,322,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46631Q AH5
DEFINED HEREIN)
ISIN NO.: US46631QAH56
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE: 032398855
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 CERTIFICATE NO.: A-M-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES
AS OF THE CLOSING DATE: $219,322,000
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-M Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-M Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-MFL
THIS CLASS A-MFL CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS AN UNDIVIDED BENEFICIAL
INTEREST IN A REMIC REGULAR INTEREST AND A SWAP CONTRACT AND CONSTITUTES AN
INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-MFL CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
PASS-THROUGH RATE: FLOATING IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $35,000,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46631Q BX9
DEFINED HEREIN)
ISIN NO.: US46631QBX97
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE: 032398880
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 CERTIFICATE NO.: A-MFL-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-MFL CERTIFICATES
AS OF THE CLOSING DATE: $35,000,000
CLASS A-MFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-MFL Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of September 28, 2007 (the "Pooling
and Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer, the Special Servicers and the Paying Agent. A summary of
certain of the pertinent provisions of the Pooling and Servicing Agreement is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-MFL Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Class A-MFL Regular
Interest, the Swap Contract and the Floating Rate Account. Each Holder of this
Certificate, by acceptance hereof, agrees to treat, and take no action
inconsistent with the treatment of, this Certificate in accordance with the
preceding sentence for purposes of federal income taxes, state and local income
and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges in limited circumstances as provided in the Pooling
and Servicing Agreement. All sums distributable on this Certificate are payable
in the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (calculated on the basis of
the actual number of days in the month and assuming each year has 360 days)
during the applicable Interest Accrual Period relating to such Distribution Date
at the Class A-MFL Pass-Through Rate specified above on the Certificate Balance
of this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount equal to this Certificate's pro rata share of the Class A-MFL Available
Funds to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement. Distributions
in respect of the Class A-MFL Certificates may depend, in part, on payments from
the Swap Counterparty under the Swap Contract as more specifically set forth in
the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the
Distribution Accounts and the Floating Rate Account will be held on behalf of
the Trustee on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and the Master Servicer (with respect to its related
Certificate Account) or the Paying Agent (with respect to the Distribution
Accounts and the Floating Rate Account) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate
Accounts will be paid to the Master Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Accounts shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-MFL Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of $10,000 initial Certificate Balance, and
in integral multiples of $1 in excess thereof, with one Certificate of each such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any tax on
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust Fund or either of
the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the Trustee has
received an Opinion of Counsel (at the expense of the party requesting such
amendment) to the effect that such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of any
such tax and such action will not adversely affect in any material respect the
interests of any Certificateholder or any Companion Holder; to change the timing
and/or nature of deposits into the Certificate Account, any Distribution
Accounts or REO Account, provided that the P&I Advance Date shall in no event be
later than the Business Day prior to related Distribution Date, such change
shall not, as evidenced by an Opinion of Counsel (at the expense of the party
requesting such amendment or at the expense of the Trust Fund if the requesting
party is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and such
change shall not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates or Serviced Companion
Loan Securities as evidenced by a letter from each Rating Agency to such effect;
to modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling
and Servicing Agreement or any other provision hereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC "residual
interests," provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any
of the Certificateholders (other than the Transferor) to be subject to a federal
tax caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency and,
in the case of a Serviced Companion Loan, a Rating Agency rating any class of
Serviced Companion Loan Securities, to such effect; to amend or supplement any
provision of the Pooling and Servicing Agreement to the extent necessary to
maintain the rating or ratings assigned to each Class of Certificates by each
Rating Agency, and, in the case of a Serviced Companion Loan, a Rating Agency
rating any class of Serviced Companion Loan Securities, to such effect; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates or Serviced
Companion Loan Securities, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Sections 3.05 and 3.19 of the Pooling
and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, or the Grantor Trust as a grantor trust, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause
the Grantor Trust to fail to qualify as a grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-MFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $152,593,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 00000X XX0
DEFINED HEREIN)
ISIN NO.: US46631QAJ13
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE: 032398910
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 CERTIFICATE NO.: A-J-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $152,593,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. (1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $[500,000,000] INC.
[500,000,000] [500,000,000]
[500,000,000] [500,000,000] TRUSTEE: XXXXX FARGO BANK, N.A.
[43,219,457]
PAYING AGENT: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 28, 2007 CUSIP NO.: X00000XX0(1), 46631Q AK8(2),
46631Q AL6(3)
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS ISIN NO.: USU177AA49(1), US46631QAK85(2),
DEFINED HEREIN) US46631QAL68(3)
CLOSING DATE: SEPTEMBER 28, 2007 COMMON CODE: 032398979(1) 032398944(2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: X-1-1
OCTOBER 12, 2007
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-1 CERTIFICATES AS OF
THE CLOSING DATE: $2,543,219,457
----------
(1) Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Master Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-1 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-1 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount, and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any tax on
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust Fund or either of
the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the Trustee has
received an Opinion of Counsel (at the expense of the party requesting such
amendment) to the effect that such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of any
such tax and such action will not adversely affect in any material respect the
interests of any Certificateholder or any Companion Holder; to change the timing
and/or nature of deposits into the Certificate Account, any Distribution
Accounts or REO Account, provided that the P&I Advance Date shall in no event be
later than the Business Day prior to related Distribution Date, such change
shall not, as evidenced by an Opinion of Counsel (at the expense of the party
requesting such amendment or at the expense of the Trust Fund if the requesting
party is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and such
change shall not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates or Serviced Companion
Loan Securities as evidenced by a letter from each Rating Agency to such effect;
to modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling
and Servicing Agreement or any other provision hereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC "residual
interests," provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any
of the Certificateholders (other than the Transferor) to be subject to a federal
tax caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency and,
in the case of a Serviced Companion Loan, a Rating Agency rating any class of
Serviced Companion Loan Securities, to such effect; to amend or supplement any
provision of the Pooling and Servicing Agreement to the extent necessary to
maintain the rating or ratings assigned to each Class of Certificates by each
Rating Agency, and, in the case of a Serviced Companion Loan, a Rating Agency
rating any class of Serviced Companion Loan Securities, to such effect; provided
that such change shall not result in the downgrade, withdrawal or qualification
of the then-current rating assigned to any Class of Certificates or Serviced
Companion Loan Securities, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Sections 3.05 and 3.19 of the Pooling
and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, or the Grantor Trust as a grantor trust, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause
the Grantor Trust to fail to qualify as a grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS B
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $31,790,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: US48177 AB2(1), 46631Q AM4(2),
DEFINED HEREIN) 46631Q AN2(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AB22(1),
US46631QAM42(2), US46621QAN25(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE: 032399029(1) 032398987(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: B-1
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $31,790,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS C
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $25,433,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AC0(1), 46631Q
DEFINED HEREIN) AP7(2), 46631Q AQ5(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AC05(1),
US46631QAP72(2), US46631QAQ55(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE: 032399053(1) 032399037(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: C-1
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $25,433,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS D
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $28,611,000 INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: US48177 AD8(1), 46631Q AR3(2),
DEFINED HEREIN) 46631Q AS1(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AD87(1),
US46631QAR39(2), US46631QAS12(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE: 032399100(1) 032399088(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: D-1
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $28,611,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS E
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $22,253,000 OR AS INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
CUSIP NO.: U48177 AE6(1), 46631Q AT9(2),
CUT-OFF DATE: AS SET FORTH IN THE 46631Q AU6 (3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48177AE60(1),
US46631QAT94(2), US46631QAU67(3)
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE NO.: 032399134(1), 032399126(2)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 CERTIFICATE NO.: E-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $22,253,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $22,253,000 OR AS INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
CUSIP NO.: U48177 AF3(1), 46631Q AV4(2),
CUT-OFF DATE: AS SET FOURTH IN THE 46631Q AW2(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48177AF36(1),
US46631QAV41(2), US46631QAW24(3)
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE NO.: 032399169(1), 032399142(2)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 CERTIFICATE NO.: F-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $22,253,000
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(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $25,432,000 OR AS INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
CUSIP NO.: U48177 AG1(1), 46631Q AX0(2),
CUT-OFF DATE: AS SET FORTH IN THE 46631Q AY8(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48177AG19(1),
US46631QAX07(2), US46631QAY89(3)
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE NO.: 032399185(1), 032399177(2)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 CERTIFICATE NO.: G-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $25,432,000
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(1) For Book-Entry Regulation S Investors Only.
(2) For Book Entry Rule 144A Only
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $34,970,000 OR AS INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
CUSIP NO.: U48177 AH9(1), 46631Q AZ5(2),
CUT-OFF DATE: AS SET FORTH IN THE 46631Q BA9(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48177AH91(1),
US46631QAZ54(2), US46631QBA94(3)
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE NO.: 032399207(1),
FIRST DISTRIBUTION DATE: 032399193(2)
OCTOBER 12, 2007
CERTIFICATE NO.: H-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $34,970,000
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(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $31,790,000 OR AS INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
CUSIP NO.: U48177 AJ5(1), 46631Q BB7(2),
CUT-OFF DATE: AS SET FORTH IN THE 46631Q BC5(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48177AJ57(1),
US46631QBB77(2), US46631QBC50(3)
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE NO.: 032399223(1), 032399215
FIRST DISTRIBUTION DATE: (2)
OCTOBER 12, 2007
CERTIFICATE NO.: J-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $31,790,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICER: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC.
SERVICING AGREEMENT
SPECIAL SERVICER: CENTERLINE SERVICING,
DENOMINATION: $28,611,000 OR AS INC.
OTHERWISE SET FORTH ON SCHEDULE A
HERETO TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
CUSIP NO.: U48177 AK2(1), 46631Q BD3(2),
CUT-OFF DATE: AS SET FORTH IN THE 46631Q BE1(3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: USU48177AK21(1),
US46631QBD34(2), US46631QBE17(3)
CLOSING DATE: SEPTEMBER 28, 2007
COMMON CODE NO.: 032399240(1),
FIRST DISTRIBUTION DATE: 032399231(2)
OCTOBER 12, 2007
CERTIFICATE NO.: K-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $28,611,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.0810% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $31,790,000 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICER: CENTERLINE SERVICING,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AL0(1), 46631Q BF8(2),
DEFINED HEREIN) 46631Q BG6(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AL04(1),
US46631QBF81(2), US46631QBG64(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032399266(1), 032399258(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: L-1
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $31,790,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.0810% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $9,537,000 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICER: CENTERLINE SERVICING,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AM8(1), 46631Q BH4(2),
DEFINED HEREIN) 46631Q BJ0(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AM86(1),
US46631QBH48(2), US46631QBJ04(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032399347(1), 032399274(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: M-1
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $9,537,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.0810% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $6,359,000 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICERS: CENTERLINE SERVICING,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AN6(1), 46631Q BK7(2),
DEFINED HEREIN) 46631Q BL5(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AN69(1),
US46631QBK76(2), US46631QBL59(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032399363(1),
032399355(2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: N-1
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $6,359,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.0810% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $19,074,000 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICER: CENTERLINE SERVICING,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AP1(1), 46631Q BM3(2),
DEFINED HEREIN) 46631Q BN1(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AP18(1),
US46631QBM33(2), US46631QBN16(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032399398(1),
032399371(2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: P-1
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $19,074,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class P Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS Q
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.0810% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $3,179,000 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICER: CENTERLINE SERVICING,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AQ9(1), 46631Q BP6(2),
DEFINED HEREIN) 46631Q BQ4(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AQ90(1),
US46631QBP63(2), US46631QBQ47(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032399410(1),
032399401(2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: Q-1
OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $3,179,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class Q Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class Q
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class Q Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class Q Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS T
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a) (1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS T CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.0810% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $9,537,000 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICER: CENTERLINE SERVICING,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AR7(1), 46631Q BR2(2),
DEFINED HEREIN) 46631Q BS0(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AR73(1),
US46631QBR20(2), US46631QBS03(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032399436(1), 032399428(2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: T-1
CERTIFICATE BALANCE
OF THE CLASS T CERTIFICATES
AS OF THE CLOSING DATE: $9,537,000
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS T CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class T Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class T
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class T Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class T Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of Counsel,
cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder or Companion Holder not consenting thereto and result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency; to
amend or supplement any provision of the Pooling and Servicing Agreement to the
extent necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not result
in the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from each Rating
Agency to such effect; to modify the provisions of Sections 3.05 and 3.19 of the
Pooling and Servicing Agreement (with respect to reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts) if the Depositor, the Master
Servicer, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an Opinion of Counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; provided that no such amendment changes in any manner the
obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase Agreement
without the consent of such Mortgage Loan Seller or adversely affect any
Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS T CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a) (1), (2), (3) OR (7) OF REGULATION
D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN
EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO
THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 5.0810% MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
DENOMINATION: $25,432,456 OR AS
OTHERWISE SET FORTH ON SCHEDULE A SPECIAL SERVICERS: CENTERLINE SERVICING,
HERETO INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF SEPTEMBER 28, 2007
PAYING AGENT: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: U48177 AS5(1), 46631Q BT8(2),
DEFINED HEREIN) 46631Q BU5(3)
CLOSING DATE: SEPTEMBER 28, 2007 ISIN NO.: USU48177AS56(1),
US46631QBT85(2), US46631QBU58(3)
FIRST DISTRIBUTION DATE:
OCTOBER 12, 2007 COMMON CODE NO.: 032399452(1),
032399444(2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: NR-1
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $25,432,456
----------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain on Sale Account
and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code") . Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-28
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a) (2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e) (5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC.
DATE OF POOLING AND SERVICING SPECIAL SERVICERS: CENTERLINE SERVICING,
AGREEMENT: AS OF SEPTEMBER 28, 2007 INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: XXXXX FARGO BANK, N.A.
CLOSING DATE: SEPTEMBER 28, 2007 CUSIP NO.: 46631Q BV3
FIRST DISTRIBUTION DATE: ISIN NO.: US46631QBV32
OCTOBER 12, 2007
CERTIFICATE NO.: R-1
CLASS R PERCENTAGE INTEREST: 100%
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-29
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-CIBC20, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a) (2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e) (5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICER: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC
DATE OF POOLING AND SERVICING SPECIAL SERVICERS: CENTERLINE SERVICING,
AGREEMENT: AS OF SEPTEMBER 28, 2007 INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: XXXXX FARGO BANK, N.A.
CLOSING DATE: SEPTEMBER 28, 2007 CUSIP NO.: 46631Q BW1
FIRST DISTRIBUTION DATE: ISIN NO.: US46631QBW15
OCTOBER 12, 2007
CERTIFICATE NO.: LR-1
CLASS LR PERCENTAGE INTEREST: 100%
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE
SPECIAL SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 28, 2007 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES TRUST 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20 and are issued
in the classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
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.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a) (1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the applicable Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Trustee, the Paying Agent, the Depositor, the Master Servicer and the
Special Servicer, without the consent of any of the Certificateholders or the
Companion Holders, to cure any ambiguity to the extent that it does not
materially and adversely affect any Certificateholder or Companion Holder; to
cause the provisions in the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in each
case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC, at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either of the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would be a
claim against the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC, provided that the Trustee has received an Opinion of Counsel (at the
expense of the party requesting such amendment) to the effect that such action
is necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and such action will not adversely
affect in any material respect the interests of any Certificateholder or any
Companion Holder; to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided that the
P&I Advance Date shall in no event be later than the Business Day prior to
related Distribution Date, such change shall not, as evidenced by an Opinion of
Counsel (at the expense of the party requesting such amendment or at the expense
of the Trust Fund if the requesting party is the Trustee or the Paying Agent),
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates or Serviced Companion Loan Securities as evidenced by a letter from
each Rating Agency to such effect; to modify, eliminate or add to the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement or any other provision
hereof restricting transfer of the Residual Certificates by virtue of their
being the REMIC "residual interests," provided that such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the Lower-Tier REMIC,
the Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a Person that
is a Disqualified Organization or a Non-U.S. Person; to make any other
provisions with respect to matters or questions arising under the Pooling and
Servicing Agreement which shall not be materially inconsistent with the
provisions of the Pooling and Servicing Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder or Companion Holder not
consenting thereto and result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates, as evidenced by a
letter from each Rating Agency and, in the case of a Serviced Companion Loan, a
Rating Agency rating any class of Serviced Companion Loan Securities, to such
effect; to amend or supplement any provision of the Pooling and Servicing
Agreement to the extent necessary to maintain the rating or ratings assigned to
each Class of Certificates by each Rating Agency, and, in the case of a Serviced
Companion Loan, a Rating Agency rating any class of Serviced Companion Loan
Securities, to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or Serviced Companion Loan Securities, as evidenced by
a letter from each Rating Agency to such effect; to modify the provisions of
Sections 3.05 and 3.19 of the Pooling and Servicing Agreement (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) if the Depositor, the Master Servicer, the Trustee and the Directing
Certificateholder determine that the commercial mortgage backed securities
industry standard for such provisions has changed, in order to conform to such
industry standard, such modification does not adversely affect the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion
of Counsel and each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or qualification of
any of the then current ratings of any Class of Certificates or Serviced
Companion Loan Securities; provided that no such amendment changes in any manner
the obligations of any Mortgage Loan Seller under a Mortgage Loan Purchase
Agreement without the consent of such Mortgage Loan Seller or adversely affect
any Companion Holder without the consent of such Companion Holder.
The Pooling and Servicing Agreement may also be amended from time to
time by the Trustee, the Paying Agent, the Depositor, the Master Servicer and
the Special Servicer, with the consent of the Holders of Certificates evidencing
in the aggregate not less than 66(2) /3% of the Percentage Interests of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the Holders
of Certificates of such Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates and any class of Serviced Companion
Loan Securities by any Rating Agency, amend the Servicing Standards.
Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (at the Trust Fund's
expense) to the effect that such amendment is permitted under the Pooling and
Servicing Agreement and that such amendment or the exercise of any power granted
to the Master Servicer, the Depositor, the Special Servicer, the Trustee, the
Paying Agent or any other specified person in accordance with such amendment
will not result in the imposition of a tax on any portion of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property remaining in the Trust Fund pursuant to the terms of the Pooling
and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, N.A.,
not in its individual capacity
but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 28, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, N.A.,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights
of survivorship and not as Under Uniform Gifts to Minors
tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
____________________________________
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change whatever.
______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
JPMCC 2007-CIBC20
Mortgage Loan Schedule (Combined)
Originator/
Loan # Loan Seller Mortgagor Name
---------------------------------------------------------------------------------------------------------------------------
1 JPMCB Centro NP Holdings 1 SPE, LLC, New Plan Creekwood SC, LLC,
Centro NP Mableton Walk, LLC, Centro NP East Lake Pavillions, LLC,
Centro NP Stockbridge Village, LLC, Centro NP Miami Gardens, LLC,
Centro NP Tarpon Mall, LLC, Centro NP Renaissance Center East, LLC,
Centro NP Paradise Pavilion, LLC
1.01 JPMCB
1.02 JPMCB
1.03 JPMCB
1.04 JPMCB
1.05 JPMCB
1.06 JPMCB
1.07 JPMCB
1.08 JPMCB
1.09 JPMCB
1.10 JPMCB
1.11 JPMCB
1.12 JPMCB
1.13 JPMCB
1.14 JPMCB
1.15 JPMCB
1.16 JPMCB
1.17 JPMCB
1.18 JPMCB
2 JPMCB Mall at Gurnee Xxxxx, LLC
3 JPMCB NHM Owner-1, LLC
4 JPMCB Sunrise Xxxxx (MLP) Limited Partnership,
Sawgrass Xxxxx Phase II Limited Partnership,
Sawgrass Xxxxx Phase III Limited Partnership
5.01 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
5 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
6 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
7 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
8 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
9 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
10 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
11 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
12 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
13 JPMCB CRP-2 Holdings DD, LLC, CRP-2 Holdings Scripps, LLC,
CRP-2 Southpoint, LLC, CRP-2 Corporate Xxxxx, LLC
14 JPMCB USF PropCo I, LLC
14.01 JPMCB
14.02 JPMCB
14.03 JPMCB
14.04 JPMCB
14.05 JPMCB
14.06 JPMCB
14.07 JPMCB
14.08 JPMCB
14.09 JPMCB
14.10 JPMCB
14.11 JPMCB
14.12 JPMCB
14.13 JPMCB
14.14 JPMCB
14.15 JPMCB
14.16 JPMCB
14.17 JPMCB
14.18 JPMCB
14.19 JPMCB
14.20 JPMCB
14.21 JPMCB
14.22 JPMCB
14.23 JPMCB
14.24 JPMCB
14.25 JPMCB
14.26 JPMCB
14.27 JPMCB
14.28 JPMCB
14.29 JPMCB
14.30 JPMCB
14.31 JPMCB
14.32 JPMCB
14.33 JPMCB
14.34 JPMCB
14.35 JPMCB
14.36 JPMCB
14.37 JPMCB
14.38 JPMCB
15 JPMCB Xxxxx Tower, LLC
16 JPMCB Riverside Lakeshore, LLC, Raintree Lakeshore, LLC,
Lakeshore Gardens Associates, LLC
17 JPMCB Titan STF TX Portfolio, LP, Titan STF NM Portfolio, LLC
17.01 JPMCB
17.02 JPMCB
17.03 JPMCB
17.04 JPMCB
17.05 JPMCB
17.06 JPMCB
17.07 JPMCB
17.08 JPMCB
17.09 JPMCB
17.10 JPMCB
17.11 JPMCB
17.12 JPMCB
17.13 JPMCB
17.14 JPMCB
17.15 JPMCB
17.16 JPMCB
17.17 JPMCB
17.18 JPMCB
17.19 JPMCB
18 CIBC XX Xxxxxxx Retail, LLC
19 JPMCB Custom House Hotel, L.P.
20.01 JPMCB
20 JPMCB Forest Hills Village MHC LLC
21 JPMCB Whispering Sands LLC
22 JPMCB Weatherstone Lakes LLC
00 XXXX Xxxx Xxxxxxxx (XX) QRS 16-105, Inc
23.01 CIBC
23.02 CIBC
23.03 CIBC
23.04 CIBC
23.05 CIBC
23.06 CIBC
23.07 CIBC
24 CIBC XXX 0000X - Xxxx Xxxx GL LLC
25 JPMCB Riverside Avenue Partners, Ltd.
26 JPMCB P&P Taylorsville Xxxxxxxx New Albany, LLC
26.01 JPMCB
26.02 JPMCB
26.03 JPMCB
00 XXXXX XXX Xxxxxxxx Xxxxxxxx (XX) QRS 14-109, Inc.
28 JPMCB Xxxxxxxxx Plaza-DG Limited Partnership
29 CIBC The Xxxxxxx Hotel, LLC
30 JPMCB Columbus Corporate Office Centre LLC
31 CIBC Sea Turtle Entertainment, LLC
32 CIBC Loma Palisades Warner Center, LLC
33 CIBC PM Autumn Creek Xxxxxxxx, LLC
34 JPMCB Timber Ridge Xxxxxxx, LLC, Timber Ridge Xxxxxxxx, LLC,
Timber Ridge Beekwilder, LLC, Timber Ridge Xxxxxxxx, LLC,
Timber Ridge Croke, LLC, Timber Ridge Xxxxxx, LLC,
Timber Ridge Xxxxxx, LLC, Timber Ridge Xxxxx, LLC,
Timber Ridge Xxxxx, LLC, Timber Ridge Fang, LLC,
Timber Ridge Goulston, LLC, Timber Ridge GU, LLC,
Timber Ridge Xxxxxx, LLC, Timber Ridge Xxxxxx, LLC,
Timber Ridge Kowalchek, LLC,
Timber Ridge La'imi Road Partners, LLC, xx.xx.
35 CIBC RP Chicago Garage, LLC
36 CIBC Sequoia Stronebriar, LP, Sequoia Stronebriar 1, LP,
Sequoia Stronebriar 2, LP, Sequoia Stronebriar 3, LP,
Sequoia Stronebriar 4, LP, Sequoia Stronebriar 5, LP,
Sequoia Stronebriar 6, LP, Sequoia Stronebriar 7, LP,
Sequoia Stronebriar 8, LP, Sequoia Stronebriar 9, LP,
Sequoia Stronebriar 10, LP, Sequoia Stronebriar 11, LP
37 JPMCB Broadway Palace Theatre Company
38 CIBC PM Enclave at Foothills Tucson, LLC
39 CIBC Paramount at Chews Landing LLC
40 CIBC PM Union Hills Estates Glendale, LLC
41 JPMCB Lotus One Properties, LLC
42 CIBC Park Ridge Physicians' Office Building Associates
43 JPMCB Carlsbad Commerce Center, LP
44 CIBC Sawmill 42 Partners, LLC
45 CIBC Monmouth Plaza Enterprises, L.L.C.
46 CIBC Mechanicsburg GF Investors, LP
47 JPMCB Southshore Real Estate Development, L.L.C.
48 CIBC Equity Industrial Southeast LLC
49 CIBC Turnersville Partners LLC
51 CIBC Folsom Apartment Development, Ltd.
52 JPMCB Park Village, LLC
53 CIBC PM 0000 Xxxxx Xxxxxx, LLC
54 CIBC Dead River 175 Running Hill, LLC
55 CIBC Infinity Corporate Centre LLC
56 CIBC Lincoln Dunhill Holdings, Ltd.
57 JPMCB Property Holdings, LLC
58 CIBC HH 00 Xxxxxxxxxxx Xxxx LLC
59 JPMCB Paterson Plaza, L.L.C.
60 JPMCB LaGuardia Center Realty LLC
61 JPMCB G&I V Mid Memphis Tower LLC
62 JPMCB 7515 Greenville Properties, Ltd.
63 CIBC Canning Boulevard Associates LLC
64 CIBC Walnut Hill Apartment Development, Ltd.
65 CIBC TJD Texas Enterprises, LLC
66 JPMCB 0000 Xxxx 000xx Xxxxxx Investors LLC
67 CIBC Columbia Properties Lima, LLC
68 JPMCB UP Improvements, LLC
69 CIBC LR Valet Airpark Wank, LLC, LR Valet Airpark Simons
Nonexempt, LLC, LR Valet Airpark Simons Exempt, LLC,
LR Valet Airpark Xxxxx, LLC, LR Valet Airpark Lumer, LLC,
LR Valet Airpark JHJ, LLC
70 CIBC Piper's Crossing Building 100, LLC
71 CIBC Embassy Investment VI, LLC
72 CIBC X.X. Xxxxxx & Son, LLC
73 JPMCB Belridge Investment, L.P., Alphaequity, LLC, Primeridge, LLC
74 CIBC R&S Partnership, LLC
75 CIBC Philips Bayberry LLC
76 CIBC Office Parks of Lynchburg, LLC
77 JPMCB 000 Xxxxxxxx Management, LLC
78 CIBC WMF 000-000 X 00XX LLC
79 CIBC Creektree Development, Ltd.
80 CIBC Pacific Shore Hotels, LLC
81 CIBC Xxxxx Fayetteville, LLC
82 CIBC ENS-1, Utah, LLC
83 JPMCB Xxxxxxxx Corridor Office Centre IV, LLC
84 CIBC Selma Investments, LLC
85 CIBC Shep (KS-OK) QRS 16-113, Inc.
85.01 CIBC
85.02 CIBC
85.03 CIBC
86 CIBC Burlington Retail, LLC
87 JPMCB Deer Trace Partners, LLC
88 CIBC Coral Reef Development LLC
89 CIBC Xxxxxxx Xxxxxx II, LLC
90 JPMCB TSCA-202 Limited Partnership
91 JPMCB Mykawa HSO Limited Partnership
92 JPMCB Sharpstown HSO Limited Partnership
93 JPMCB OCI Properties III, LLC
94 JPMCB Century Park Partners, Ltd.
95 JPMCB 000 Xxxxxxxxxxxxx Xxxx., LLC
96 CIBC Xxxxxxx Albuquerque, LLC;Bruel NM, LLC;
Salma 1 NM, LLC;Salma 2 NM, LLC
97 CIBC Cambridge Texas 660, LLC
98 CIBC Orchard Place Holdings, LLC
99 JPMCB Gvogel, LLC, Dvogel, LLC
100 CIBC International Institute of Boston Real Property, LLC
101 JPMCB J.J. & W., I, Ltd.
102 JPMCB Lafayette Partners, Ltd.
103 JPMCB XxXxxx CBD Limited Partnership
104 CIBC LM Ideal LLC
105 JPMCB CBS (PA) QRS 14-12, Inc.
106 CIBC Elite Hospitality III, LLC
107 CIBC Xxxxxxx Marketplace, L.P.
108 JPMCB Xxxx XX X'Xxxxxx Mo, LLC
109 CIBC KCWS, L.C.
110 JPMCB Citizens Square Associates, LLC
111 JPMCB Xxxx XX St. Xxxxxx MO, LLC
000 XXXX XXX Xxxxx Retail, LLC
113 CIBC Northland Plaza Investors, LLC
114 CIBC MSP Hotels, Inc.
115 CIBC 108 & 219 LLC
115.01 CIBC
115.02 CIBC
116 CIBC Campus Park Housing, L.L.C.
117 JPMCB Xxxx 24 Olathe KS, LLC
118 CIBC 000 Xxxxx 00 Xxxxx, Xxxxxxxxx Heights, LLC
119 JPMCB Xxxx XX Aurora Co, LLC
120 CIBC L A Properties, L.L.C.
121 JPMCB Liberty Hospitality Group, Inc.
122 JPMCB Wood Hill, L.L.C.
123 JPMCB Aspen Xxxxxxxx, LLC
124 JPMCB FranMar Presentations, LLC
125 JPMCB CMS Chesterbrook, L.P.
126 CIBC New Opportunity Limited Liability Company
127 JPMCB Fall Lake Xxxxx, LLC, Fall Lake Xxxxxxx, LLC,
Fall Lake Xxxxxx, LLC, Fall Lake XxXxxxxxx, LLC,
Fall Lake Xxxxx, LLC, Fall Lake Xxxxx, LLC,
Fall Lake Cai, LLC, Fall Lake Xxxxxx, LLC,
Fall Lake X.X. Xxxxxx, LLC, Fall Lake Xxxxxxxx, LLC,
Fall Lake Ebel, LLC, Fall Lake Xxxxxx, LLC
128 JPMCB WH Corners Ltd.
129 CIBC The Tower at Boerne, LP
130 CIBC Xxxxxx Xxxxx Realty LLC
000 XXXX Xx. Xxxx Holdings LLC
132 JPMCB The Shops at Port A LP
133 JPMCB Saint Xxxx 2200 Limited Partnership
134 CIBC WMF 000 X 00XX LLC
135 JPMCB King Bordeaux Investors, LTD.
136 JPMCB Terravista Partners - Roselawn, Ltd.
137 JPMCB Arcadia Plaza Investors, LLC
138 CIBC Xxxxxxxx II, LLC, Autumn Three LLC
139 CIBC 1582 York LLC
140 CIBC WMF 000 X 00XX LLC
141 CIBC Briarwood Xxxxxx, X.X.
142 JPMCB AFG-Xxxxxx, LLC
000 XXXX X&X 000 X 00XX LLC
144 CIBC Randalls Partners Shopping Center LLC
Loan # Property Address City
------------------------------------------------------------------------------------------------------------------------------------
1 Various Various
1.01 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx
1.02 0000-0000 Xxxxxxx 000, Xxxxxxxxx Xxxxxxxxxxx
1.03 0000 Xxxxxxxxx 000xx Xxxxxx Xxxxx
1.04 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxxx
1.05 000 Xxx Xxxxx Xxxx Center Elk Grove Village
1.06 000-000 Xxxxx Xxxxx Xxxx Xxx Xxxxx
1.07 000-000 Xxxxxx Xxxxx Xxxxxxxxx
1.08 0000 Xxxxxxx Xxxx Xxxxxxxx
1.09 00000 XX Xxxxxxx 00 Xxxxx Xxxxxx Xxxxxxx
1.10 0000 Xxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx
1.11 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx
1.12 0000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx
1.13 0000-0000 Xxxxx Xxxxx Xxxxx Xxxxxxxx
1.14 0000-0000 Xxxxxxxx Xxxx College Station
1.15 0000-0000 Xxxxx Xxxx Mableton
1.16 0000 Xxxxxxxxxx Xxxxxx Roanoke
1.17 0000-0000 Xxxx 00xx Xxxxxx Grand Rapids
1.18 0000 Xxxxxxx 00 Xxx
2 0000 Xxxx Xxxxx Xxxxxx Gurnee
3 0000 Xxx Xxxxx Xxxx Raleigh
4 00000 Xxxx Xxxxxxx Xxxxxxxxx Sunrise
5.01 Various Various
5 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx
6 6925 & 0000 Xxxx Xxxxxxxxx Xxx Xxxxx
0 00000 and 00000 Xxxx Xxxxxx Xxxxxx Englewood
8 00 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxxx
9 000 Xxxxx Xxxxxxxxxxx Xxxxxxxxx El Segundo
10 0000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxx Xxxx
11 000 Xxxx Xxxxxx Xxx Xxxxx Village
12 00 Xxxx Xxxxxx Xxxxxx Des Plaines
13 0000 Xxxxx Xxxxxx Xxx Xxxxx Village
14 Various Various
14.01 00000 Xxxxxxx Xxxxxx Xx Xxxxxx
14.02 000 Xxxxx Xxxx Xxxx Xxxxxxxxx
14.03 0000 Xxxx Xxxxx Xxxxxx Xxxxx
14.04 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxx Xxx Xxxxx
14.05 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxx
14.06 000 Xxxxxxxx Xxxxx Livermore
14.07 0000 Xxxx Xxxxxxx Xxxx Xxxxxxx
14.08 0000 Xxxxxxxxx Xxxx Severn
14.09 00000 Xxxxx XX 00 Xxxxxxxx Xxxx
14.10 0000 XX 0xx Xxxxxx Boca Raton
14.11 00000 Xxxxxxxxxx Xxxx Manassas
14.12 0000 XX Xxxxxxx 00 Xxxxxxx
14.13 00000 Xxxxxx Xxxx Wixom
14.14 00000 Xxxx Xxxxxxxx Xxxxxx Centennial
14.15 00000 Xxxxxxxxxx Xxxx Fishers
14.16 0000 Xxxxx XX Xxxxxxx 0 Xxxxxx Xxxxx
14.17 0000 00xx Xxxxxx Xxxxx Xxxxxxxx
14.18 222-260 and 000-000 Xxxxxxxxx Xxxxxx Xxxxxxx
14.19 West 137 X0000 Xxxxxxx 000 Xxxxxxxxx Xxxxx
14.20 000 Xxxxx Xxxxxx Xxxx & 0000 Xxxxxx Xxxx Xxxxxxx
14.21 000 Xxxxxxx Xxxxx Xxxxxxx
14.22 000 Xxxxxx Xxxx Xxxxxxx Xxxx
14.23 00 Xxxx Xxxxx Xxxxxxxxx Xxxxx
14.24 0000 Xxxxxxx Xxxx Xxxxxxxxx
14.25 00000 Xxxxx 00xx Xxxxx Xxxxxxx
14.26 0 Xxxxxxx Xxxx Xxxxxxxx
14.27 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
14.28 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx
14.29 0000/0000 Xxxxx 00xx Xxxxxx Paducah
14.30 0000/0000 Xxxxxx Xxxxxx Xxxxxxxxxx
14.31 0000 00xx Xxxxxx Xxxxx Xxxxx Xxxxx
14.32 0000 Xxxxxx Xxxx Xxxxx Xxxxxxxx
14.33 000 Xxxxxxxxxxx Xxxxxxx Xxxx Cheektowaga
14.34 0000 Xxxx X Xxxxxxxx Xxxxx Xxxxx
14.35 0000 Xxxxxxxx Xxxxxx Bismarck
14.36 000 Xxxxx Xxxxxxxxx Xxxxxx and 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
14.37 0000 Xxxxxxxx Xxxxxx Hurricane
14.38 000 Xxxxx Xxxx Xxxxxxx Xxxxxx
15 0000 Xxxxxx Xxxxxx Xxxxxxx
16 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxx Xxxxxxxxxxxx
17 Various Various
17.01 000 Xxxxxxxxx Xxxxx Santa Xxxxxx
17.02 0000 Xxx Xxxxxxx Xxxxx El Paso
17.03 0000 Xxxx Xxxxxxxx Xxxxxxx McAllen
17.04 4200-4328 West Military Highway McAllen
17.05 9701 Pan American Drive El Paso
17.06 0000 Xxxx Xxxxxxxxx Xxxxxx McAllen
17.07 0000 Xxxxxxx Xxxx Santa Xxxxxx
17.08 0000 Xxxx Xxxxxxxx Xxxxxxx McAllen
17.09 0000 Xxxxx 00xx Xxxxxx McAllen
17.10 0000 Xxxx Xxxxxxxxx Xxxxxx McAllen
17.11 0000 Xxxxx Xxxxxx Xx Xxxx
17.12 0000 Xxxx Xxxxxxxxx Xxxxxx McAllen
17.13 0000 Xxxxx 00xx Xxxxxx McAllen
17.14 0000 Xxxx Xxxxxxxx Xxxxxxx McAllen
17.15 0000 Xxxx Xxxxxxxx Xxxxxxx McAllen
17.16 0000 Xxxxxxx Xxxxxx McAllen
17.17 0000 Xxxxx 00xx Xxxxxx McAllen
17.18 0000 Xxxxx 00xx Xxxxxx McAllen
17.19 0000 Xxxxx 00xx Xxxxxx McAllen
18 4815, 4846, 4851, 4915 and 0000 Xxx Xxxxx Xxxxxx Xxxxxxx
19 2 Portola Plaza Monterey
20.01 Various Various
20 11707 North 0xx Xxxxxx & 0000 Xxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxx and Lovers Park
21 810 North Elmwood Park Valparaiso
22 21191 Xxxxxxxx Avenue Sauk Village
23 Various Various
23.01 00000 Xxx Xxxxxxx Xxxxxx Hayward
23.02 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxx
23.03 0000 Xxxxxxx Xxxxxxxxx Xxx Xxxxxxx
23.04 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx
23.05 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxx
23.06 0000 Xxxxxx Xxxx Xxxxxxx
23.07 000 Xxx-Xxxxx Xxxx Xxxx Xxxx
24 0000 Xxxxxxx Xxxxxx Palo Alto
25 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx
26 Various Various
26.01 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxxx
26.02 0000 Xxxxx Xxxxxxxx Xxxx & 0000-0000 Xxxxxx Xxxxxxxxx Xxxx Columbus
26.03 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx
27 0000 Xxxxxxx Xxxxx Xxxxxxx Torrance
28 0000 X Xxxxxx, Xxxxxxxxx Xxxxxxxxxx
29 000 Xxxx 00xx Xxxxxx Xxx Xxxx
30 00000 Xxxx Xxxxxx Xxxx Xxxx Xxxx
00 000-000 Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxx
00 00000, 21300-21320 and 00000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxx
& 21150-21160 and 21300-21320 Xxxxxx Xxxxxx
00 0000 Xxxxx XxXxxxx Xxxx Chandler
34 0000 Xxxx Xxxxxx Mobile
35 000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxx
36 5200 Town and Country Boulevard Frisco
37 0000 Xxxxxxxx Xxx Xxxx
38 7300 North Xxxx Xxxx Road Tucson
39 0000 Xxxxx Xxxxxxx Xxxx Xxxxxx Xxxxxxx
40 0000 Xxxx Xxxxx Xxxxx Xxxxx Xxxxxxxx
41 0000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxx
42 0000 Xxxx Xxxx Xxxx Xxxxxx
43 0000-0000 Xxxxxxx Xxxxxx Carlsbad
44 0000 XX Xxxxxxx 00 Xxxxx Xxxxxxxx
45 000-000 Xxxxx 00 Xxxxxxxxx
46 0000 Xxxxxxxx Xxxx Mechanicsburg
47 0000 Xxxx Xxxxxx Xxxxxxx
48 000 Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxxxxxxxxx
49 0000 Xxxxx 00 Xxxxxxxxxxxx
51 3980 North Major Drive Beaumont
52 2060, 2070, 2080, 2090 & 0000 Xxxx Xxxx Xxxxxxxx
53 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx
54 000 Xxxxxxx Xxxx Xxxx Xxxxx Xxxxxxxx
55 10500 Xxxxxxxxx Boulevard Garfield Heights
56 0000 Xxxxx Xxxxxxxxxx Xxxxxxx 00 Xxxxxx
57 0000-0000 Xxxxxxx Xxx Xxxx Xxxxxxxxx
58 00 Xxx Xxxxxxxx Xxxx Xxxxxxx
59 100 Xxxxxxxx Plaza Paterson
60 00-00 Xxxxxxx Xxxxxxxxx Xxxxxxx
61 0000 Xxxxx Xxxxxx Xxxxxxx
62 0000 Xxxxxxxxxx Xxxxxx Dallas
63 000-000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx Fall River
64 0000 Xxxxx Xxxxxxxxxx Xxxxx Nacogdoches
65 7150, 0000 Xxxxxxxx Xxxx Xxxxxxx
66 0000 Xxxx 000xx Xxxxxx Xxxxxxxx Xxxx
67 0000 Xxxxxxxx Xxxxxx Xxxx
00 0000-0000 and 0000-0000 Xxxxxxxxxxxx Xxxxxxxxx Highland
69 0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
70 1201-1217 Piper Boulevard Naples
71 530 A1A Beach Boulevard Saint Augustine
72 00000 Xxxxxxx Xxxxxxxxx Tarzana
73 000 Xxxxx Xxxx Xxx Xxxx Xxxxxxx
74 12444 South Apopka Xxxxxxxx Xxxx Xxxxxxx
00 00 Xxxxx Xxxxxxx Xxxxx Xxxxx Xxxx
76 0000 Xxxxxxxx Xxxxxxxx Xxxx Lynchburg
77 599 Broadway Paterson
78 000-000 Xxxx 00xx Xxxxxx Xxx Xxxx
00 2807 Xxxxxx XxXxxx Drive Lufkin
80 0000 Xx Xxxx Xxxxxx Xxx Xxxxx
81 000 Xxxxx Xxxxx Xxxx Xxxxxxxxxxxx
82 0000 Xxxxxxx Xxxxx Xxxxxx
83 28175 Cabot Drive Novi
84 16435 XX-00 Xxxxx Xxxxx
00 Various Various
85.01 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx
85.02 0000 Xxxxx Xxxxx Xxxxxxx
85.03 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx City
86 0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx
87 10514 Buck Crossing Xxxxxx
88 0000 Xxxxxxxxx Xxxxx Concord
00 000 Xxxxx 00 Red Bank
90 000 Xxxx Xxxx Xxxx Xxxx Xxxxx Xxxx
91 00000 Xxxxxxxxx Xxxxxxx Xxxxxxx
92 5822-5828 Parkersburg, 0000-0000 Xxxxxx Xxxxx, Xxxxxxx
0000-0000 Xxxxx Xxxxx, 0000-0000 Xxxxxxxxxxx,
5650-5660 Savoy Drive, 5701-5711 Savoy Drive,
5721-5729 Savoy Drive
93 0000 Xxxxx Xxxxx Des Moines
94 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx
95 000 Xxxxxxxxxxxxx Xxxxxxxxx Carmel
96 0000 Xxxxx Xxxx Xxxxx Xxxx Xxxxxxxxxxx
97 660 North Central Expressway Plano
98 000 Xxxx Xxxxxxx Xxxxxx Xxxxx
99 000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxx Xxxxxx
100 One Milk Street Boston
101 600 Nova Drive Massillon
102 0000 Xxxxx Xxxxx Xxxxxx Xxxxx Corpus Christi
103 0000 Xxx Xxxxxxxx Xxxxx XxXxxx
104 0000 Xxxxxxxxx 00xx Xxxxxx Lauderhill
105 000 Xxxxxxx Xxxxx Xxxxxxxxxx
000 000 Xxxxx 0xx Xxxxxx Xxxxxxx
107 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx Odessa
108 2691 Highway K X'Xxxxxx
109 1525 and 0000 Xxxxx 000 Xxxx & 000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
110 4075 Georgia Xxxxxxx 000 Xxxxxx
000 0000 Xxxxx Xxxxxxx 00 Xx. Xxxxxx
112 0000 Xxxxx Xxxxxxxxxx Xxx Xxxxx X' Xxxxx
000 000 Xxxx Xxxxxxxx Xxxxxx Xxxx
000 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx
000 Various Various
115.01 000-000 Xxxx 000xx Xxxxxx Xxxxx
115.02 00-00 000xx Xxxxxx Xxxxxx
116 000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxx
000 000xx Xxxxx xxx Xxxxxxxxx Xxxxx Xxxxxx
118 000-000 Xxxxx Xxxxx 00 Xxxxxxxxx Xxxxxxx
119 0000 Xxxxx Xxxxxxx Xxxxxx Aurora
120 2400, 2421, 2401, 0000 Xxxxxxx 000 Xxxxx Xxxxxxxxx
121 0000 Xxxxxxxxx Xxxxx Bethlehem
122 0 Xxxxxxxxx Xxxxx Xxxxxxxx
123 000 Xxxxxxxx Xxxx Xxxx Xxxx Xxxxx
124 00000 Xxxx Xxxxx Xxx Xxxx Xxxxxx
125 000 Xxxxxx Xxxx Xxxxxxxxxxxx
126 000 Xxxxxxxx Xxxxxx Xxxxxxx
127 0000 Xxxxxx Xxxxxxx Xxxxxxx
128 000 0xx Xxxxxx Xxxxx Xxxx Winter Haven
129 0000 Xxxxx Xxxx Xxxxxx Xxxxxx
130 0000 Xxxxxxx Xxxxxx Quincy
131 521-545 Saint Xxxx Place Baltimore
132 1007, 1023 & 0000 Xxxxx Xxxxxxx 000 Xxxx Xxxxxxx
133 0000 Xxxxx Xxxx Xxxx Xxxxxxx
134 000 Xxxx 00xx Xxxxxx Xxx Xxxx
135 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx
136 3346 Roselawn Road San Antonio
137 00000 Xxxxxxxxxx Xxxx Xxxx Murrieta
138 0000 Xxxxxxxx Xxx Xxxxxxx Xxxxx
139 0000 Xxxx Xxxxxx Xxx Xxxx
140 000 Xxxx 00xx Xxxxxx Xxx Xxxx
141 901-1027 West Main Street Xxxxxx
142 1855 Mall of Georgia Boulevard Buford
143 000 Xxxx 00xx Xxxxxx Xxx Xxxx
144 0000 Xxxxxxx Xxxxx Xxxxxx
Zip Property
Loan # State Code County Name Size
------------------------------------------------------------------------------------------------------------------------------------
1 Various Various Various Centro - New Plan Pool I 3144729
1.01 TX 78336 Xxxxxxx Xxxxxx Place Center 310184
1.02 GA 30281 Xxxxxxx Xxxxxxxxxxx Xxxxxxx 000000
1.03 FL 33015 Miami-Dade Xxxxx Xxxxxxx 000000
1.04 NC 28625 Iredell Crossroads Shopping Center 340190
1.05 IL 60007 Xxxx Elk Grove Town Center 131849
1.06 MI 48103 Washtenaw Maple Village 296385
1.07 CA 93010 Xxxxxxx Xxxxxx Xxxxx 000000
1.08 GA 30062 Xxxx Pavillions at Xxxxxxxx 000000
1.09 FL 34689 Pinellas Tarpon Mall 147585
1.10 NV 89119 Xxxxx Renaissance Center East 144216
1.11 AZ 00000 Xxxx Xxxxxxxxx Xxxxxx 000000
0.00 XX 00000 Xxxxxxxxxx Xxxxxxxx Xxxxxxxx 000000
1.13 OH 43235 Franklin Crown Point 147275
1.14 TX 77845 Brazos Rock Prairie Crossing 119000
1.15 GA 30126 Xxxx Mableton Walk 105742
1.16 VA 24018 Roanoke Cave Spring Corners 147044
1.17 MI 00000 Xxxx Xxxxxxx Xxxx 00000
1.18 GA 30273 Xxxxxxx Creekwood Shopping Center 69778
2 IL 60031 Lake Gurnee Xxxxx 1558930
3 NC 00000 Xxxx Xxxxx Xxxxx Xxxx 000000
0 XX 00000 Broward Sawgrass Xxxxx Mall 1991491
5.01 Various Various Xxxxxxx Xxxxxx Xxxxxxxxx XXX 0000000
5 KS 66211 Xxxxxxx Financial Plaza 291967
6 CA 92121 San Diego Scripps Waterbridge 124290
7 CO 00000 Xxxxxxxx Xxx Xxxxx Xxxxxxxxx Xxxxxx XX & XXX 000000
8 MO 63044 Saint Louis 00 Xxxxxxxxx Xxxxx Xxxxx 000000
0 XX 00000 Los Angeles 000 Xxxxx Xxxxxxxxxxx 00000
00 XX 00000 Xxxxxxx 3000 SouthPoint 203280
11 IL 60007 Xxxx X'Xxxx Industrial 701 Xxxx 93655
12 IL 60018 Xxxx X'Xxxx Industrial 00 Xxxx Xxxxxx 00000
00 XX 00000 Xxxx X'Xxxx Industrial 1525 Chase 30500
14 Various Various Various USFS Industrial Distribution Portfolio 9042097
14.01 XX 00000 Los Angeles 00000 Xxxxxxx Xxxxxx 436739
14.02 SC 29072 Lexington 000 Xxxxx Xxxx Xxxx 000000
00.00 XX 00000 Hillsborough 0000 Xxxx Xxxxx Xxxxxx 000000
00.00 XX 00000 Xxxxx 0000 Xxxx Xxxxxxxx Xxxxxx 000000
00.00 XX 00000 Mecklenburg 0000 Xxxxxxxxxxx Xxxx 000000
00.00 XX 00000 Alameda 000 Xxxxxxxx Xxxxx 000000
00.00 XX 00000 Maricopa 0000 Xxxx Xxxxxxx Xxxx 000000
00.00 XX 00000 Xxxx Arundel 0000 Xxxxxxxxx Xxxx 000000
00.00 XX 00000 Oklahoma 10211 North X-00 Xxxxxxx Xxxx 000000
14.10 FL 33487 Palm Beach 0000 XX 0xx Xxxxxx 000000
00.00 XX 00000 Prince Xxxxxxx 00000 Xxxxxxxxxx Xxxx 287080
14.12 NC 27597 Wake 0000 XX Xxx 00 000000
00.00 XX 00000 Oakland 28001 Xxxxxx Xxxx 000000
14.14 CO 80111 Arapahoe 00000 Xxxx Xxxxxxxx Xxxxxx 000000
14.15 IN 46038 Xxxxxxxx 00000 Xxxxxxxxxx Xxxx 229062
14.16 FL 32174 Volusia 0000 Xxxxx XX Xxx 0 000000
00.00 XX 00000 Hennepin 0000 00xx Xxxxxx Xxxxx 000000
00.00 XX 00000 New London 000 Xxxxxxxxx Xxxxxx X.X. Xxx 000 000000
14.19 WI 53051 Waukesha X000 X0000 Xxxxxxx 00 000000
00.00 XX 00000 Dallas 000 Xxxxx Xxxxxx Xxxx & 0000 Xxxxxx Xxxx 000000
00.00 XX 00000 Xxxxxx 000 Xxxxxxx Xxxxx 000000
00.00 XX 00000 Saratoga 000 Xxxxxx Xxxx 000000
00.00 XX 00000 Salem 00 Xxxx Xxxxx Xxxxxxxxx 356178
14.24 OH 44087 Summit 0000 Xxxxxxx Xxxx 000000
00.00 XX 00000 Maricopa 00000 Xxxxx 00xx Xxxxx 00000
14.26 IL 61364 Xxxxxxxxxx 1 Quality Lane 155100
14.27 AL 36108 Montgomery 0000 Xxxxx Xxxxxxx 000000
00.00 XX 00000 Xxxxxx 0000 Xxxxxxxxx Xxxxx 000000
00.00 XX 00000 XxXxxxxxx 0000/0000 Xxxxx 00xx Xxxxxx 000000
00.00 XX 00000 Xxxxxxxxxxxx 0000/0000 Xxxxxx Xxxxxx 323900
14.31 ND 58201 Grand Forks 0000 00xx Xxxxxx Xxxxx 000000
00.00 XX 00000 Hennepin 0000 Xxxxxx Xxxx Xxxxx 00000
00.00 XX 00000 Erie 000 Xxxxxxxxxxx Xxxxxxx Xxxx 000000
14.34 NE 68110 Xxxxxxx 0000 Xxxx X Xxxxxxxx Xxxxx 000000
00.00 XX 00000 Burleigh 0000 Xxxxxxxx Xxxxxx 00000
00.00 XX 00000 Xxxx 000-000 Xxxxx Xxxxxxxxx Xxxxxx 00000
14.37 WV 00000 Xxxxxx 0000 Xxxxxxxx Xxxxxx 000000
00.00 XX 00000 Pima 000 Xxxx Xxxxx 00000
00 XX 00000 Xxxxxx Xxxxx Tower 657245
16 IN 46250 Xxxxxx Lakeshore Apartments 740
17 Various Various Various STF Portfolio 1200274
17.01 XX 00000 Xxxx Xxx 000 Xxxxxxxxx Xxxxx 333800
17.02 TX 79936 El Paso 0000 Xxx Xxxxxxx Xxxxx 174860
17.03 TX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxx Xxxxxxx 000000
00.00 XX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxx Xxxxxxx 00000
17.05 TX 79927 El Paso 0000 Xxx Xxxxxxxx Xxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxx 00000
00.00 XX 00000 Xxxx Xxx 0000 Xxxxxxx Xxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxx Xxxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxxx 00xx Xxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxx 00000
00.00 XX 00000 El Paso 0000 Xxxxx Xxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxxx 00xx Xxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxx Xxxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxxxxx Xxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxxx 00xx Xxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxxx 00xx Xxxxxx 00000
00.00 XX 00000 Xxxxxxx 0000 Xxxxx 00xx Xxxxxx 00000
00 XX 00000 Orange Xxxxxxx Park Retail 182463
19 CA 93940 Monterey Portola Plaza Hotel 379
20.01 Various Various Various Xxxxx Crossed Portfolio 1356
20 IL 61111, 61115 Winnebago Forest View 933
21 IN 46385 Xxxxxx Whispering Sands 329
22 IL 60411 Xxxx Sauk Trail MHC 94
23 Various Various Various International Aluminum Portfolio 757266
23.01 XX 00000 Alameda 00000 Xxx Xxxxxxx Xxxxxx 000000
00.00 XX 00000 Los Angeles 0000 Xxxxxxxxx Xxxxxxxxx 000000
00.00 XX 00000 Los Angeles 0000 Xxxxxxx Xxxxxxxxx 000000
00.00 XX 00000 Maricopa 0000 Xxxx Xxxxxxxx Xxxxxx 00000
00.00 XX 00000 Xxxx 0000 Xxxx 00xx Xxxxxx 00000
00.00 XX 00000 Xxxxxx 0000 Xxxxxx Xxxx 00000
00.00 XX 00000 York 000 Xxx-Xxxxx Xxxx 00000
00 XX 00000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxxx 00000
25 FL 32202 Xxxxx Everbank Building 207022
26 Various Various Various Gold's Gym Portfolio 194312
26.01 XX 00000 Jefferson Gold's Gym - Taylorsville 67634
26.02 OH 43230 Franklin Gold's Gym - New Albany 72417
26.03 OH 43026 Franklin Gold's Gym - Xxxxxxx 54261
27 CA 00000 Xxx Xxxxxxx Xxxx Xxx - Xxxxxxxx, XX 000000
28 DC 20009 District of Columbia Xxxxxxxxx Xxxxx 000
00 XX 00000 Xxx Xxxx The Xxxxxxx Hotel 121
30 MI 48377 Oakland Columbus Corporate Xxxxxx 000000
00 XX 00000 Beaufort Berkeley Place 125511
32 CA 91367 Los Angeles Xxxxxx Xxxxxx Xxxxxxxx Xxxx 000000
00 XX 00000 Maricopa Xxxxxx Xxxxx 000
00 XX 00000 Mobile Xxxxxx Xxxxx Xxxxxxxxxx 000
00 XX 00000 Xxxx Millennium Garage 523
36 TX 75034 Xxxxxx Xxxxxxxxxx Xxxxxxxxxx 000
00 XX 00000 Xxx Xxxx 0000 Xxxxxxxx 52657
38 AZ 85741 Pima Enclave at the Foothills 300
39 NJ 00000 Xxxxxx Xxxxxxxxxxx xx Xxxxx Xxxxxxx 000000
40 AZ 00000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxx 000
00 XX 00000 Xxx Xxxxxxx Xxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx 00000
42 NY 00000 Xxxxxx Xxxx Xxxxx Xxxxxxx Xxxxxx 00000
43 CA 92008 San Diego Carlsbad Commerce Center 145718
44 OH 43015 Delaware Associated Hygienic Products 306500
45 NJ 07724 Monmouth Monmouth Plaza 84947
46 PA 17050 Cumberland Holiday Inn - Xxxxxxxxxx Xxxx 000
00 XX 00000 Wayne Xxxxxxxxxx Xxxxxxx 00000
00 XX 00000 Plymouth 000 Xxxxx Xxxxxxx Xxxxxx 00000
00 XX 00000 Gloucester Gannttown 107587
51 TX 00000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx 000
00 XX 00000 Xxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxxxxxx 000
00 XX 00000 Pima 0000 Xxxxx 000
00 XX 00000 Cumberland Aetna Building 59341
55 OH 44125 Cuyahoga Infinity Corporate Centre 92155
56 TX 78752 Xxxxxx Xxxxxxx Xxxxxxx 000000
57 FL 34209 Manatee Palma Sola Shopping Center 115809
58 MA 01867 Middlesex Hallmark Health Systems 33420
59 NJ 07505 Passaic Xxxxxxxxx Xxxxxxxx Xxxxx 000000
00 XX 00000 Queens 43-02 Xxxxxxx 83266
61 TN 38104 Shelby Mid Memphis Tower 209438
62 TX 75231 Dallas 7515 Greenville 121441
63 MA 02721 Bristol Xxxx'x Plaza 73590
64 TX 75965 Xxxxxxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx 000
00 TX 00000 Xxxxxx Xxxxxx Xx Xxxxxxxx 000
00 XX 00000 Xxxxxxx 0000 Xxxx 000xx Xxxxxx 000000
00 XX 00000 Xxxxx Xxxxxxx Xxx - Xxxx 000
00 XX 00000 Lake Ultra Plaza 166727
69 CA 00000 Xxx Xxxxxx Xxxxx Xxxxxxx 000
00 XX 00000 Xxxxxxx Pipers Crossing 45034
71 FL 00000 Xxxxx Xxxxx Xxxxxxxx Xxxx 00
00 XX 00000 Los Angeles Xxxx Xxxxxx Xxxxx 00000
00 XX 00000 Xxxxxx 000 X. Xxxx Xxx 000000
74 FL 32836 Orange Lake Buena Vista Shopping Center 30730
75 NY 11021 Nassau The Xxxxxx Hotel 62
76 VA 24502 Lynchburg Xxxxxxx Xxx - Xxxxxxxxx, XX 000
00 XX 00000 Passaic 000 Xxxxxxxx 000
00 XX 00000 New York 000-000 Xxxx 00xx Xxxxxx 00
00 XX 00000 Angelina Xxxxxx Xxxxx Xxxxxxxxxx 000
00 XX 00000 San Diego Mission Bay Holiday Inn Express 88
81 NC 00000 Xxxxxxxxxxxx Xxxxxxxxx Xxx - Xxxxxxxxxxxx, XX 133
82 UT 84123 Xxxx Xxxx Xxxxxxx Xxxxx Xxxxx 00000
00 XX 00000 Oakland Xxxxxxxx IV 52756
84 TX 78154 Xxxxxxxxx Xxxx X. Xxxxxxxxxx & Son Facility 327155
85 Various Various Various Sheplers Portfolio 257038
85.01 XX 00000 Sedgwick 0000 Xxxx Xxxxxx 000000
00.00 XX 00000 Sedgwick 4950 South Xxxxx 90000
85.03 XX 00000 Oklahoma 000 X. Xxxxxxxx Xxx. 00000
00 XX 00000 Skagit Sportsman Xxxxxxxxx, Xxxxxxxxxx 00000
87 KY 00000 Xxxxx Xxxx Xxxxx XXX 000
00 XX 00000 Cabarrus International Xxxxxxxxx Xxxxxx 00000
00 XX 00000 Xxxxxxxx Xxxxxxxxxxxx Xxxxx XXX 00000
90 TX 75104 Dallas Lakeridge Shopping Center 130762
91 TX 77074 Xxxxxx Xxx Xxxxxxxx Xxxxx 000000
00 XX 00000 Xxxxxx Sharpstown Industrial Portfolio I & II 163798
93 IA 50321 Polk Hampton Inn - Des Moines Airport 121
94 TX 77073 Xxxxxx Century Park Apartments 208
95 IN 00000 Xxxxxxxx Xxxxx Xxxxxx Xxxxxx - Xxxxxx, XX 000000
96 NM 00000 Xxxxxxxxxx Xxxxxxx Xxx & Xxxxxx - Xxxxxxxxxxx, XX 88
97 TX 75074 Collin 000 Xxxxx Xxxxxxx Xxxxxxxxxx 00000
98 ID 00000 Xxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx 000
00 XX 00000 Walworth 200 Xxxxxxx 50987
100 MA 02109 Suffolk Xxx Xxxx Xxxxxx 00000
000 XX 00000 Xxxxx Alco Building 166910
102 TX 78412 Nueces Armon Bay Apartments 148
103 VA 22101 Fairfax PNC Bank - XxXxxx 18000
104 FL 33313 Broward Ideal Building 68833
105 PA 15238 Allegheny L-3 Communications 000000
000 XX 00000 Xxxxxx Quality Inn 000
000 XX 00000 Ector Xxx Xxxxxxxxxxx Xxxxxxxx Xxxxxx - Xxxxxx, XX 00000
108 MO 00000 Xx. Xxxxxxx Xxxx'x Xxx - X'Xxxxxx, XX 00000
109 UT 84341 Cache KCWS Building 51869
110 GA 30157 Paulding Citizen Square 75432
111 MO 00000 Xxxxx Xxxxxxx Xxxx'x Xxx - Xx. Xxxxxx, XX 00000
112 ID 83815 Kootenai Sportsman's Warehouse - Coeur D' Alene 47979
113 OH 45801 Xxxxx Xxxxxxxxx Xxxxx 000000
114 SC 00000 Xxxxxxxxxx Xxxxxxxx Xxxxxx - Xxxxxxxxxx, XX 77
115 NY Various Various Agency of Childhood Development 44700
115.01 NY 10467 Bronx Agency of Childhood Development - Bronx 22700
115.02 XX 00000 Queens Agency of Childhood Development - Queens 22000
116 ID 00000 Xxxx Xxxxx Xxxxxx Xxxx Housing 48
117 KS 66062 Xxxxxxx 24 Hour Fitness Olathe 25000
118 NJ 07604 Bergen 000 Xxxxx 00 Xxxxx 00000
119 CO 00000 Xxxxxxxx Xxxxxxx Xxxx Xxxxxx Xxxxxxxx 00000
120 TX 76063 Tarrant Mansfield Portfolio 55184
121 PA 18020 Northampton Comfort Inn - Bethlehem 112
122 NY 00000 Xxxxxx Xxxxxxxx Xxxxxxxxxx 00
000 XX 00000 Palm Beach Xxxxxxxx 72000
124 CO 80134 Xxxxxxx Twenty Mile Stadium Theater 32142
125 PA 19460 Xxxxxxxxxx Chesterbrook Academy 14890
126 MA 00000 Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx 00
000 XX 00000 Xxxxxx Fall Xxxx Xxxxxxxxxx 000
000 XX 00000 Polk Winter Haven Corners 23434
129 TX 78006 Xxxxxxx Tower at Boerne 24353
130 MA 02169 Norfolk The Heritage Building-Xxxxxxx Street 30491
131 MD 21202 Baltimore City 000-000 Xx. Xxxx Xxxxx 00000
000 XX 00000 Nueces Shops at Port A - Phase I 32700
133 TX 77018 Xxxxxx 0000 Xxxxx Xxxx 00000
000 XX 00000 New York 000 Xxxx 00xx Xxxxxx 00
000 XX 00000 Kleberg Bordeaux Apartments 000
000 XX 00000 Bexar Roselawn 88
137 CA 92562 Riverside Murrieta Professional Plaza 19601
138 OR 00000 Xxxxxxx Xxxxxxxx Retail Center 13577
139 NY 10028 New York 0000 Xxxx Xxxxxx 00
000 XX 00000 New York 000 Xxxx 00xx Xxxxxx 00
000 XX 00000 Xxxxx Briarwood Shopping Center 99053
142 GA 30519 Gwinnett Lazy Boy - Xxxxxx, XX 00000
143 NY 10036 New York 000 Xxxx 00xx Xxxxxx 00
000 XX 00000 Xxxxxx Xxxxxxx'x Supermarket 30000
Net
Mortgage
Interest Interest Original Cutoff Rem.
Loan # Measure Rate (%) Rate Balance Balance Term Term
-----------------------------------------------------------------------------------------------------------------------------
1 Square Feet 6.38350 6.36276 300,000,000 300,000,000 120 120
1.01 Square Feet 6.38350 30,000,000 30,000,000 120 120
1.02 Square Feet 6.38350 25,000,000 25,000,000 120 120
1.03 Square Feet 6.38350 23,500,000 23,500,000 120 120
1.04 Square Feet 6.38350 22,000,000 22,000,000 120 120
1.05 Square Feet 6.38350 21,000,000 21,000,000 120 120
1.06 Square Feet 6.38350 19,000,000 19,000,000 120 120
1.07 Square Feet 6.38350 18,700,000 18,700,000 120 120
1.08 Square Feet 6.38350 18,500,000 18,500,000 120 120
1.09 Square Feet 6.38350 18,100,000 18,100,000 120 120
1.10 Square Feet 6.38350 17,000,000 17,000,000 120 120
1.11 Square Feet 6.38350 17,000,000 17,000,000 120 120
1.12 Square Feet 6.38350 13,000,000 13,000,000 120 120
1.13 Square Feet 6.38350 12,900,000 12,900,000 120 120
1.14 Square Feet 6.38350 10,900,000 10,900,000 120 120
1.15 Square Feet 6.38350 10,000,000 10,000,000 120 120
1.16 Square Feet 6.38350 10,000,000 10,000,000 120 120
1.17 Square Feet 6.38350 7,800,000 7,800,000 120 120
1.18 Square Feet 6.38350 5,600,000 5,600,000 120 120
2 Square Feet 5.76700 5.74626 246,000,000 246,000,000 120 118
3 Square Feet 6.01300 5.99226 141,150,000 141,150,000 120 118
4 Square Feet 5.82000 5.79926 139,411,765 139,411,765 84 82
5.01 Square Feet 6.06700 107,323,000 107,323,000
5 Square Feet 6.06700 6.04626 27,330,000 27,330,000 72 72
6 Square Feet 6.06700 6.04626 22,800,000 22,800,000 84 84
7 Square Feet 6.06700 6.04626 17,166,000 17,166,000 60 60
8 Square Feet 6.06700 6.04626 14,050,000 14,050,000 60 60
9 Square Feet 6.06700 6.04626 12,741,000 12,741,000 60 60
10 Square Feet 6.06700 6.04626 6,960,000 6,960,000 60 60
11 Square Feet 6.06700 6.04626 2,820,000 2,820,000 84 84
12 Square Feet 6.06700 6.04626 2,340,000 2,340,000 84 84
13 Square Feet 6.06700 6.04626 1,116,000 1,116,000 84 84
14 Square Feet 6.38300 6.35226 67,709,413 67,709,413 120 119
14.01 Square Feet 6.38300 6,503,750 6,503,750 120 119
14.02 Square Feet 6.38300 3,977,500 3,977,500 120 119
14.03 Square Feet 6.38300 3,397,000 3,397,000 120 119
14.04 Square Feet 6.38300 3,332,500 3,332,500 120 119
14.05 Square Feet 6.38300 3,249,725 3,249,725 120 119
14.06 Square Feet 6.38300 3,085,250 3,085,250 120 119
14.07 Square Feet 6.38300 2,990,650 2,990,650 120 119
14.08 Square Feet 6.38300 2,838,000 2,838,000 120 119
14.09 Square Feet 6.38300 2,805,750 2,805,750 120 119
14.10 Square Feet 6.38300 2,687,500 2,687,500 120 119
14.11 Square Feet 6.38300 2,569,250 2,569,250 120 119
14.12 Square Feet 6.38300 2,402,625 2,402,625 120 119
14.13 Square Feet 6.38300 1,935,000 1,935,000 120 119
14.14 Square Feet 6.38300 1,838,250 1,838,250 120 119
14.15 Square Feet 6.38300 1,773,750 1,773,750 120 119
14.16 Square Feet 6.38300 1,666,250 1,666,250 120 119
14.17 Square Feet 6.38300 1,612,500 1,612,500 120 119
14.18 Square Feet 6.38300 1,612,500 1,612,500 120 119
14.19 Square Feet 6.38300 1,526,500 1,526,500 120 119
14.20 Square Feet 6.38300 1,451,250 1,451,250 120 119
14.21 Square Feet 6.38300 1,419,000 1,419,000 120 119
14.22 Square Feet 6.38300 1,268,500 1,268,500 120 119
14.23 Square Feet 6.38300 1,268,500 1,268,500 120 119
14.24 Square Feet 6.38300 1,187,875 1,187,875 120 119
14.25 Square Feet 6.38300 1,092,200 1,092,200 120 119
14.26 Square Feet 6.38300 1,042,750 1,042,750 120 119
14.27 Square Feet 6.38300 987,925 987,925 120 119
14.28 Square Feet 6.38300 852,475 852,475 120 119
14.29 Square Feet 6.38300 798,188 798,188 120 119
14.30 Square Feet 6.38300 780,450 780,450 120 119
14.31 Square Feet 6.38300 760,563 760,563 120 119
14.32 Square Feet 6.38300 599,313 599,313 120 119
14.33 Square Feet 6.38300 569,750 569,750 120 119
14.34 Square Feet 6.38300 462,250 462,250 120 119
14.35 Square Feet 6.38300 413,875 413,875 120 119
14.36 Square Feet 6.38300 387,000 387,000 120 119
14.37 Square Feet 6.38300 387,000 387,000 120 119
14.38 Square Feet 6.38300 176,300 176,300 120 119
15 Square Feet 6.21700 6.19626 60,750,000 60,750,000 120 120
16 Units 5.79100 5.77026 52,200,000 52,200,000 120 118
17 Square Feet 6.45450 6.42746 49,000,000 49,000,000 120 119
17.01 Square Feet 6.45450 12,854,215 12,854,215 120 119
17.02 Square Feet 6.45450 6,694,823 6,694,823 120 119
17.03 Square Feet 6.45450 5,671,505 5,671,505 120 119
17.04 Square Feet 6.45450 3,253,886 3,253,886 120 119
17.05 Square Feet 6.45450 2,603,889 2,603,889 120 119
17.06 Square Feet 6.45450 2,174,453 2,174,453 120 119
17.07 Square Feet 6.45450 2,171,336 2,171,336 120 119
17.08 Square Feet 6.45450 1,766,061 1,766,061 120 119
17.09 Square Feet 6.45450 1,726,313 1,726,313 120 119
17.10 Square Feet 6.45450 1,589,144 1,589,144 120 119
17.11 Square Feet 6.45450 1,477,693 1,477,693 120 119
17.12 Square Feet 6.45450 1,440,283 1,440,283 120 119
17.13 Square Feet 6.45450 1,071,639 1,071,639 120 119
17.14 Square Feet 6.45450 918,103 918,103 120 119
17.15 Square Feet 6.45450 803,535 803,535 120 119
17.16 Square Feet 6.45450 736,508 736,508 120 119
17.17 Square Feet 6.45450 695,981 695,981 120 119
17.18 Square Feet 6.45450 688,187 688,187 120 119
17.19 Square Feet 6.45450 662,446 662,446 120 119
18 Square Feet 6.83000 6.80926 41,500,000 41,500,000 120 120
19 Rooms 5.44650 5.42576 40,000,000 40,000,000 120 119
20.01 Pads 6.51700 39,005,000 39,005,000 60 59
20 Pads 6.51700 6.49626 30,874,000 30,874,000 60 59
21 Pads 6.51700 6.49626 6,241,000 6,241,000 60 59
22 Pads 6.51700 6.49626 1,890,000 1,890,000 60 59
23 Square Feet 6.50000 6.47926 39,000,000 39,000,000 120 118
23.01 Square Feet 6.50000 8,400,000 8,400,000 120 118
23.02 Square Feet 6.50000 8,400,000 8,400,000 120 118
23.03 Square Feet 6.50000 7,600,000 7,600,000 120 118
23.04 Square Feet 6.50000 5,900,000 5,900,000 120 118
23.05 Square Feet 6.50000 4,800,000 4,800,000 120 118
23.06 Square Feet 6.50000 2,400,000 2,400,000 120 118
23.07 Square Feet 6.50000 1,500,000 1,500,000 120 118
24 Square Feet 6.98000 6.95926 39,000,000 39,000,000 120 120
25 Square Feet 6.21950 6.18876 38,800,000 38,800,000 120 119
26 Square Feet 6.71350 6.66076 29,425,000 29,425,000 120 120
26.01 Square Feet 6.71350 10,825,000 10,825,000 120 120
26.02 Square Feet 6.71350 10,250,000 10,250,000 120 120
26.03 Square Feet 6.71350 8,350,000 8,350,000 120 120
27 Square Feet 6.30430 6.28356 28,700,000 28,700,000 120 120
28 Units 5.82100 5.76026 27,300,000 27,300,000 120 108
29 Rooms 6.22000 6.19926 25,000,000 25,000,000 120 118
30 Square Feet 6.46550 6.44476 24,000,000 24,000,000 144 144
31 Square Feet 6.32000 6.29926 23,500,000 23,500,000 120 118
32 Square Feet 6.46000 6.43926 22,750,000 22,750,000 120 119
33 Units 6.58000 6.55926 21,335,000 21,335,000 120 119
34 Units 6.46000 6.43926 20,425,000 20,425,000 60 60
35 Units 6.69000 6.66926 20,000,000 20,000,000 120 119
36 Units 6.40000 6.37926 20,000,000 20,000,000 120 120
37 Square Feet 5.58100 5.56026 20,000,000 20,000,000 120 120
38 Units 6.58000 6.55926 18,650,000 18,650,000 120 119
39 Square Feet 5.78000 5.75926 18,400,000 18,400,000 120 117
40 Units 6.58000 6.55926 17,970,000 17,970,000 120 119
41 Square Feet 6.36950 6.34876 17,300,000 17,287,021 120 119
42 Square Feet 6.30000 6.27926 16,900,000 16,900,000 120 119
43 Square Feet 6.36400 6.34326 16,300,000 16,300,000 120 120
44 Square Feet 5.95000 5.90926 15,613,000 15,613,000 120 117
45 Square Feet 6.39000 6.36926 15,293,000 15,293,000 120 119
46 Rooms 6.30000 6.27926 15,100,000 15,062,498 120 117
47 Square Feet 6.57450 6.51376 14,800,000 14,800,000 120 119
48 Square Feet 5.86000 5.83926 14,500,000 14,500,000 120 118
49 Square Feet 5.81000 5.78926 14,000,000 14,000,000 120 118
51 Units 6.56000 6.53926 13,400,000 13,400,000 120 119
52 Units 6.18000 6.15926 13,000,000 12,989,729 120 119
53 Units 6.58000 6.55926 12,795,000 12,795,000 120 119
54 Square Feet 5.80000 5.77926 12,650,000 12,650,000 120 117
55 Square Feet 6.20000 6.17926 12,600,000 12,600,000 120 120
56 Square Feet 6.55000 6.52926 12,500,000 12,500,000 120 119
57 Square Feet 6.51400 6.49326 12,250,000 12,250,000 120 120
58 Square Feet 6.15000 6.12926 12,060,000 12,060,000 120 120
59 Square Feet 6.33550 6.31476 12,000,000 12,000,000 120 119
60 Square Feet 6.41400 6.39326 12,000,000 12,000,000 120 120
61 Square Feet 5.86400 5.84326 11,700,000 11,700,000 60 54
62 Square Feet 6.53270 6.51196 11,700,000 11,700,000 120 119
63 Square Feet 6.61000 6.58926 11,100,000 11,100,000 120 120
64 Units 6.56000 6.53926 10,900,000 10,900,000 120 119
65 Units 5.82000 5.79926 10,780,000 10,740,504 113 109
66 Square Feet 6.56250 6.54176 10,540,000 10,540,000 120 120
67 Rooms 6.46000 6.43926 10,500,000 10,484,593 120 118
68 Square Feet 6.36250 6.34176 10,250,000 10,250,000 120 119
69 Units 6.64000 6.61926 10,000,000 10,000,000 120 119
70 Square Feet 5.82000 5.79926 10,000,000 10,000,000 120 115
71 Rooms 6.19000 6.16926 10,000,000 9,984,200 120 118
72 Square Feet 6.85000 6.82926 9,700,000 9,700,000 120 120
73 Square Feet 6.55000 6.52926 9,600,000 9,600,000 120 120
74 Square Feet 5.69000 5.66926 9,500,000 9,500,000 120 117
75 Rooms 6.46000 6.43926 9,500,000 9,493,050 84 83
76 Rooms 6.95000 6.92926 9,000,000 9,000,000 120 119
77 Units 6.30450 6.28376 9,000,000 9,000,000 120 119
78 Units 5.75000 5.72926 8,720,000 8,720,000 120 117
79 Units 6.56000 6.53926 8,700,000 8,700,000 120 119
80 Rooms 6.84000 6.81926 8,700,000 8,700,000 120 120
81 Rooms 6.63000 6.60926 8,500,000 8,494,073 120 119
82 Square Feet 6.02000 5.99926 8,500,000 8,428,339 120 111
83 Square Feet 6.38950 6.36876 8,125,000 8,125,000 120 120
84 Square Feet 6.15000 6.12926 8,100,000 8,017,162 120 115
85 Square Feet 6.46000 6.43926 8,000,000 7,994,147 120 119
85.01 Square Feet 6.46000 4,166,305 4,163,257 120 119
85.02 Square Feet 6.46000 2,275,072 2,273,408 120 119
85.03 Square Feet 6.46000 1,558,623 1,557,483 120 119
86 Square Feet 5.94000 5.91926 7,940,000 7,926,595 120 118
87 Pads 6.35350 6.33276 7,900,000 7,900,000 120 120
88 Square Feet 6.49000 6.46926 7,805,000 7,805,000 120 119
89 Square Feet 6.52000 6.49926 7,800,000 7,800,000 120 120
90 Square Feet 6.25000 6.22926 7,550,000 7,550,000 180 180
91 Square Feet 6.65050 6.62976 7,425,000 7,425,000 120 120
92 Square Feet 6.63600 6.61526 7,250,000 7,250,000 120 120
93 Rooms 6.43000 6.40926 7,200,000 7,200,000 60 60
94 Units 5.56000 5.53926 7,200,000 7,200,000 120 118
95 Square Feet 5.98900 5.96826 7,050,000 7,050,000 120 117
96 Rooms 6.24000 6.21926 7,000,000 7,000,000 120 117
97 Square Feet 6.10000 6.07926 6,800,000 6,800,000 120 118
98 Units 6.21000 6.18926 6,600,000 6,600,000 60 57
99 Square Feet 6.56850 6.54776 6,600,000 6,600,000 120 120
100 Square Feet 6.23000 6.20926 6,500,000 6,500,000 60 59
101 Square Feet 6.65000 6.62926 6,500,000 6,500,000 120 120
102 Units 5.56000 5.53926 6,440,000 6,440,000 120 118
103 Square Feet 6.54200 6.52126 6,300,000 6,300,000 120 120
104 Square Feet 6.57000 6.54926 6,100,000 6,095,673 120 119
105 Square Feet 6.31150 6.29076 6,000,000 6,000,000 60 60
106 Rooms 6.24000 6.21926 6,000,000 5,990,647 60 58
107 Square Feet 6.69000 6.66926 5,900,000 5,900,000 120 118
108 Square Feet 6.08800 6.06726 5,425,000 5,425,000 120 120
109 Square Feet 5.96000 5.93926 5,325,000 5,316,057 120 118
110 Square Feet 6.27350 6.25276 5,300,000 5,300,000 60 60
111 Square Feet 5.90800 5.88726 5,250,000 5,250,000 122 121
112 Square Feet 6.43000 6.40926 5,220,000 5,216,149 120 119
113 Square Feet 6.53000 6.50926 5,100,000 5,100,000 120 120
114 Rooms 6.84000 6.78926 5,000,000 5,000,000 120 120
115 Square Feet 6.65000 6.62926 4,960,000 4,956,561 120 119
115.01 Square Feet 6.65000 2,640,000 2,638,170 120 119
115.02 Square Feet 6.65000 2,320,000 2,318,392 120 119
116 Units 6.73000 6.70926 4,850,000 4,850,000 120 120
117 Square Feet 6.15000 6.12926 4,816,500 4,816,500 120 120
118 Square Feet 6.50000 6.47926 4,800,000 4,796,527 120 119
119 Square Feet 6.62200 6.60126 4,777,000 4,777,000 120 120
120 Square Feet 6.68000 6.65926 4,750,000 4,750,000 60 59
121 Rooms 6.50150 6.48076 4,700,000 4,693,183 60 58
122 Units 6.49500 6.47426 4,600,000 4,600,000 120 120
123 Square Feet 6.36700 6.29626 4,600,000 4,600,000 120 119
124 Square Feet 6.76650 6.74576 4,400,000 4,400,000 120 120
125 Square Feet 6.45700 6.39626 4,300,000 4,300,000 84 83
126 Units 6.42000 6.39926 4,250,000 4,250,000 120 118
127 Units 5.87700 5.85626 4,200,000 4,200,000 60 57
128 Square Feet 6.54550 6.53476 4,000,000 4,000,000 120 119
129 Square Feet 5.92000 5.89926 3,900,000 3,900,000 120 118
130 Square Feet 6.81000 6.78926 3,800,000 3,800,000 120 120
131 Square Feet 7.00000 6.97926 3,800,000 3,800,000 60 59
132 Square Feet 6.15000 6.03926 3,800,000 3,792,570 240 239
133 Square Feet 6.23450 6.21376 3,565,000 3,565,000 120 120
134 Units 5.75000 5.72926 3,345,000 3,345,000 120 117
135 Units 6.41850 6.39776 3,000,000 3,000,000 120 118
136 Units 6.12550 6.10476 2,983,000 2,983,000 120 117
137 Square Feet 6.35350 6.33276 2,700,000 2,700,000 120 120
138 Square Feet 6.90000 6.87926 2,690,000 2,690,000 120 120
139 Units 5.75000 5.72926 2,625,000 2,625,000 120 117
140 Units 5.75000 5.72926 2,500,000 2,500,000 120 117
141 Square Feet 6.63000 6.60926 2,450,000 2,450,000 120 119
142 Square Feet 6.70000 6.67926 2,437,500 2,437,500 120 120
143 Units 5.75000 5.72926 1,610,000 1,610,000 120 117
144 Square Feet 6.52000 6.49926 1,416,000 1,416,000 120 118
Maturity/ Monthly Servicing
ARD Amort. Rem. Debt Fee Accrual ARD ARD Step
Loan # Date Term Amort. Service Rate Type (Y/N) Up (%)
------------------------------------------------------------------------------------------------------------------------------------
1 09/01/17 360 360 1,873,278 0.02000 Actual/360 No
1.01 09/01/17 360 360 Actual/360 No
1.02 09/01/17 360 360 Actual/360 No
1.03 09/01/17 360 360 Actual/360 No
1.04 09/01/17 360 360 Actual/360 No
1.05 09/01/17 360 360 Actual/360 No
1.06 09/01/17 360 360 Actual/360 No
1.07 09/01/17 360 360 Actual/360 No
1.08 09/01/17 360 360 Actual/360 No
1.09 09/01/17 360 360 Actual/360 No
1.10 09/01/17 360 360 Actual/360 No
1.11 09/01/17 360 360 Actual/360 No
1.12 09/01/17 360 360 Actual/360 No
1.13 09/01/17 360 360 Actual/360 No
1.14 09/01/17 360 360 Actual/360 No
1.15 09/01/17 360 360 Actual/360 No
1.16 09/01/17 360 360 Actual/360 No
1.17 09/01/17 360 360 Actual/360 No
1.18 09/01/17 360 360 Actual/360 No
2 07/01/17 0 0 1,198,655 0.02000 Actual/360 No
3 07/01/17 0 0 717,102 0.02000 Actual/360 No
4 07/01/14 0 0 685,538 0.02000 Actual/360 No
5.01 550,143 Actual/360 No
5 10/01/13 0 0 140,095 0.02000 Actual/360 No
6 10/01/14 0 0 116,874 0.02000 Actual/360 No
7 10/01/12 0 0 87,994 0.02000 Actual/360 No
8 10/01/12 0 0 72,021 0.02000 Actual/360 No
9 10/01/12 0 0 65,311 0.02000 Actual/360 No
10 10/01/12 0 0 35,677 0.02000 Actual/360 No
11 10/01/14 0 0 14,455 0.02000 Actual/360 No
12 10/01/14 0 0 11,995 0.02000 Actual/360 No
13 10/01/14 0 0 5,721 0.02000 Actual/360 No
14 08/01/17 0 0 365,160 0.03000 Actual/360 No
14.01 08/01/17 0 0 Actual/360 No
14.02 08/01/17 0 0 Actual/360 No
14.03 08/01/17 0 0 Actual/360 No
14.04 08/01/17 0 0 Actual/360 No
14.05 08/01/17 0 0 Actual/360 No
14.06 08/01/17 0 0 Actual/360 No
14.07 08/01/17 0 0 Actual/360 No
14.08 08/01/17 0 0 Actual/360 No
14.09 08/01/17 0 0 Actual/360 No
14.10 08/01/17 0 0 Actual/360 No
14.11 08/01/17 0 0 Actual/360 No
14.12 08/01/17 0 0 Actual/360 No
14.13 08/01/17 0 0 Actual/360 No
14.14 08/01/17 0 0 Actual/360 No
14.15 08/01/17 0 0 Actual/360 No
14.16 08/01/17 0 0 Actual/360 No
14.17 08/01/17 0 0 Actual/360 No
14.18 08/01/17 0 0 Actual/360 No
14.19 08/01/17 0 0 Actual/360 No
14.20 08/01/17 0 0 Actual/360 No
14.21 08/01/17 0 0 Actual/360 No
14.22 08/01/17 0 0 Actual/360 No
14.23 08/01/17 0 0 Actual/360 No
14.24 08/01/17 0 0 Actual/360 No
14.25 08/01/17 0 0 Actual/360 No
14.26 08/01/17 0 0 Actual/360 No
14.27 08/01/17 0 0 Actual/360 No
14.28 08/01/17 0 0 Actual/360 No
14.29 08/01/17 0 0 Actual/360 No
14.30 08/01/17 0 0 Actual/360 No
14.31 08/01/17 0 0 Actual/360 No
14.32 08/01/17 0 0 Actual/360 No
14.33 08/01/17 0 0 Actual/360 No
14.34 08/01/17 0 0 Actual/360 No
14.35 08/01/17 0 0 Actual/360 No
14.36 08/01/17 0 0 Actual/360 No
14.37 08/01/17 0 0 Actual/360 No
14.38 08/01/17 0 0 Actual/360 No
15 09/01/17 360 360 372,745 0.02000 Actual/360 No
16 07/01/17 360 360 305,986 0.02000 Actual/360 No
17 08/01/17 360 360 308,249 0.02630 Actual/360 No
17.01 08/01/17 360 360 Actual/360 No
17.02 08/01/17 360 360 Actual/360 No
17.03 08/01/17 360 360 Actual/360 No
17.04 08/01/17 360 360 Actual/360 No
17.05 08/01/17 360 360 Actual/360 No
17.06 08/01/17 360 360 Actual/360 No
17.07 08/01/17 360 360 Actual/360 No
17.08 08/01/17 360 360 Actual/360 No
17.09 08/01/17 360 360 Actual/360 No
17.10 08/01/17 360 360 Actual/360 No
17.11 08/01/17 360 360 Actual/360 No
17.12 08/01/17 360 360 Actual/360 No
17.13 08/01/17 360 360 Actual/360 No
17.14 08/01/17 360 360 Actual/360 No
17.15 08/01/17 360 360 Actual/360 No
17.16 08/01/17 360 360 Actual/360 No
17.17 08/01/17 360 360 Actual/360 No
17.18 08/01/17 360 360 Actual/360 No
17.19 08/01/17 360 360 Actual/360 No
18 10/01/17 360 360 271,379 0.02000 Actual/360 No
19 08/01/17 0 0 184,072 0.02000 Actual/360 No
20.01 08/01/12 360 360 246,974 Actual/360 No
20 08/01/12 360 360 195,490 0.02000 Actual/360 No
21 08/01/12 360 360 39,517 0.02000 Actual/360 No
22 08/01/12 360 360 11,967 0.02000 Actual/360 No
23 07/01/17 360 360 246,507 0.02000 Actual/360 No
23.01 07/01/17 360 360 Actual/360 No
23.02 07/01/17 360 360 Actual/360 No
23.03 07/01/17 360 360 Actual/360 No
23.04 07/01/17 360 360 Actual/360 No
23.05 07/01/17 360 360 Actual/360 No
23.06 07/01/17 360 360 Actual/360 No
23.07 07/01/17 360 360 Actual/360 No
24 10/01/17 360 360 258,944 0.02000 Actual/360 No
25 08/01/17 360 360 238,129 0.03000 Actual/360 No
26 10/01/17 300 300 202,623 0.05200 Actual/360 No
26.01 10/01/17 300 300 Actual/360 No
26.02 10/01/17 300 300 Actual/360 No
26.03 10/01/17 300 300 Actual/360 No
27 09/01/17 360 360 177,726 0.02000 Actual/360 No
28 09/01/16 360 360 160,549 0.06000 30/360 No
29 07/01/17 0 0 131,383 0.02000 Actual/360 No
30 09/01/19 264 264 170,606 0.02000 Actual/360 No
31 07/01/17 360 360 145,765 0.02000 Actual/360 No
32 08/01/17 360 360 143,198 0.02000 Actual/360 No
33 08/01/17 360 360 135,976 0.02000 Actual/360 No
34 09/01/12 360 360 128,563 0.02000 Actual/360 No
35 08/01/17 360 360 128,923 0.02000 Actual/360 No
36 09/01/17 360 360 125,101 0.02000 Actual/360 No
37 09/01/17 360 360 114,576 0.02000 Actual/360 No
38 08/01/17 360 360 118,864 0.02000 Actual/360 No
39 06/01/17 360 360 107,728 0.02000 Actual/360 No
40 08/01/17 360 360 114,530 0.02000 Actual/360 No
41 08/01/17 360 359 107,867 0.02000 Actual/360 No
42 08/01/17 360 360 104,606 0.02000 Actual/360 No
43 09/01/17 360 360 101,574 0.02000 Actual/360 No
44 06/01/17 360 360 93,107 0.04000 Actual/360 No
45 08/01/17 360 360 95,559 0.02000 Actual/360 No
46 06/01/17 360 357 93,465 0.02000 Actual/360 No
47 08/01/17 360 360 94,272 0.06000 Actual/360 No
48 07/01/17 360 360 85,634 0.02000 Actual/360 No
49 07/01/17 360 360 82,235 0.02000 Actual/360 No
51 08/01/17 360 360 85,227 0.02000 Actual/360 No
52 08/01/17 360 359 79,452 0.02000 Actual/360 No
53 08/01/17 360 360 81,547 0.02000 Actual/360 No
54 06/01/17 0 0 61,991 0.02000 Actual/360 No
55 09/01/17 360 360 77,171 0.02000 Actual/360 No
56 08/01/17 360 360 79,420 0.02000 Actual/360 No
57 09/01/17 360 360 77,541 0.02000 Actual/360 No
58 09/01/17 360 360 73,473 0.02000 Actual/360 No
59 08/01/17 360 360 74,555 0.02000 Actual/360 No
60 09/01/17 360 360 75,171 0.02000 Actual/360 No
61 03/01/12 0 0 57,968 0.02000 Actual/360 No
62 08/01/17 360 360 74,204 0.02000 Actual/360 No
63 09/01/17 360 360 70,964 0.02000 Actual/360 No
64 08/01/17 360 360 69,326 0.02000 Actual/360 No
65 10/01/16 360 356 63,389 0.02000 Actual/360 No
66 09/01/17 360 360 67,054 0.02000 Actual/360 No
67 07/01/17 360 358 66,091 0.02000 Actual/360 No
68 08/01/17 360 360 63,863 0.02000 Actual/360 No
69 08/01/17 360 360 64,130 0.02000 Actual/360 No
70 04/01/17 360 360 58,803 0.02000 Actual/360 No
71 07/01/17 360 358 61,182 0.02000 Actual/360 No
72 09/01/17 360 360 63,560 0.02000 Actual/360 No
73 09/01/17 360 360 60,995 0.02000 Actual/360 No
74 06/01/17 360 360 55,078 0.02000 Actual/360 No
75 08/01/14 360 359 59,797 0.02000 Actual/360 No
76 08/01/17 300 300 63,323 0.02000 Actual/360 No
77 08/01/17 360 360 55,734 0.02000 Actual/360 No
78 06/01/17 0 0 42,364 0.02000 Actual/360 No
79 08/01/17 360 360 55,334 0.02000 Actual/360 No
80 09/01/17 360 360 56,949 0.02000 Actual/360 No
81 08/01/17 360 359 54,455 0.02000 Actual/360 No
82 12/01/16 360 351 51,071 0.02000 Actual/360 No
83 09/01/17 300 300 54,301 0.02000 Actual/360 No
84 04/01/17 240 235 58,734 0.02000 Actual/360 No
85 08/01/17 360 359 50,355 0.02000 Actual/360 No
85.01 08/01/17 360 359 Actual/360 No
85.02 08/01/17 360 359 Actual/360 No
85.03 08/01/17 360 359 Actual/360 No
86 07/01/17 360 358 47,298 0.02000 Actual/360 No
87 09/01/17 360 360 49,175 0.02000 Actual/360 No
88 08/01/17 360 360 49,282 0.02000 Actual/360 No
89 09/01/17 360 360 49,404 0.02000 Actual/360 No
90 09/01/22 180 180 64,735 0.02000 Actual/360 No
91 10/01/17 360 360 47,668 0.02000 Actual/360 No
92 10/01/17 360 360 46,475 0.02000 Actual/360 No
93 10/01/12 360 360 45,178 0.02000 Actual/360 No
94 07/01/17 360 360 41,152 0.02000 Actual/360 No
95 06/01/17 360 360 42,218 0.02000 Actual/360 No
96 06/01/17 360 360 43,055 0.02000 Actual/360 No
97 07/01/17 360 360 41,208 0.02000 Actual/360 No
98 06/01/12 0 0 34,629 0.02000 Actual/360 No
99 09/01/17 360 360 42,014 0.02000 Actual/360 No
100 08/01/12 0 0 34,215 0.02000 Actual/360 No
101 09/01/17 240 240 49,038 0.02000 Actual/360 No
102 07/01/17 360 360 36,808 0.02000 Actual/360 No
103 09/01/17 360 360 39,994 0.02000 Actual/360 No
104 08/01/17 360 359 38,837 0.02000 Actual/360 No
105 09/01/12 360 360 37,183 0.02000 Actual/360 No
106 07/01/12 360 358 36,904 0.02000 Actual/360 No
107 07/01/17 360 360 38,032 0.02000 Actual/360 No
108 09/01/17 0 0 27,905 0.02000 Actual/360 No
109 07/01/17 360 358 31,789 0.02000 Actual/360 No
110 10/01/12 360 360 32,714 0.02000 Actual/360 No
111 10/01/17 360 360 31,167 0.02000 Actual/360 No
112 08/01/17 360 359 32,754 0.02000 Actual/360 No
113 09/01/17 360 360 32,336 0.02000 Actual/360 No
114 10/01/17 300 300 34,830 0.05000 Actual/360 No
115 08/01/17 360 359 31,841 0.02000 Actual/360 No
115.01 08/01/17 360 359 Actual/360 No
115.02 08/01/17 360 359 Actual/360 No
116 10/01/17 360 360 31,393 0.02000 Actual/360 No
117 09/01/17 0 0 25,027 0.02000 Actual/360 No
118 08/01/17 360 359 30,339 0.02000 Actual/360 No
119 09/01/17 0 0 26,727 0.02000 Actual/360 No
120 08/01/12 360 360 30,588 0.02000 Actual/360 No
121 07/01/12 360 358 29,712 0.02000 Actual/360 No
122 09/01/17 360 360 29,060 0.02000 Actual/360 No
123 08/01/17 360 360 28,674 0.07000 Actual/360 No
124 09/01/17 300 300 30,446 0.02000 Actual/360 No
125 08/01/14 360 360 27,057 0.06000 Actual/360 No
126 07/01/17 360 360 26,640 0.02000 Actual/360 No
127 06/01/12 0 0 20,855 0.02000 Actual/360 No
128 08/01/17 360 360 25,403 0.01000 Actual/360 No
129 07/01/17 360 360 23,182 0.02000 Actual/360 No
130 09/01/17 360 360 24,798 0.02000 Actual/360 No
131 08/01/12 0 0 22,475 0.02000 Actual/360 No
132 08/01/27 240 239 27,554 0.11000 Actual/360 No
133 09/01/17 360 360 21,914 0.02000 Actual/360 No
134 06/01/17 0 0 16,251 0.02000 Actual/360 No
135 07/01/17 360 360 18,802 0.02000 Actual/360 No
136 06/01/17 0 0 15,438 0.02000 Actual/360 No
137 09/01/17 0 0 14,494 0.02000 Actual/360 No
138 09/01/17 360 360 17,716 0.02000 Actual/360 No
139 06/01/17 0 0 12,753 0.02000 Actual/360 No
140 06/01/17 0 0 12,146 0.02000 Actual/360 No
141 08/01/17 360 360 15,696 0.02000 Actual/360 No
142 09/01/17 228 228 18,928 0.02000 Actual/360 No
143 06/01/17 0 0 7,822 0.02000 Actual/360 No
144 07/01/17 360 360 8,969 0.02000 Actual/360 No
Title Crossed
Loan # Type Loan Guarantor
------------------------------------------------------------------------------------------------------------------------------------
1 Fee CPT Manager Limited, Centro Properties Limited
1.01 Fee
1.02 Fee
1.03 Fee
1.04 Fee
1.05 Fee
1.06 Fee
1.07 Fee
1.08 Fee
1.09 Fee
1.10 Fee
1.11 Fee
1.12 Fee
1.13 Fee
1.14 Fee
1.15 Fee
1.16 Fee
1.17 Fee
1.18 Fee
2 Fee SPG ML Holdings, LLC,
SPG-FMC Holdings I, LLC,
The Xxxxx Limited Partnership
3 Fee Xxxx X. Xxxx
4 Fee Sunrise Xxxxx (MLP) Limited Partnership,
Sawgrass Xxxxx Phase II Limited Partnership,
Sawgrass Xxxxx Phase III Limited Partnership,
Sawgrass Xxxxx IV, LLC and The Xxxxx Limited Partnership
5.01 Fee Colony Realty Partners II REIT
5 Fee A Colony Realty Partners II REIT
6 Fee A Colony Realty Partners II REIT
7 Fee A Colony Realty Partners II REIT
8 Fee A Colony Realty Partners II REIT
9 Fee A Colony Realty Partners II REIT
10 Fee A Colony Realty Partners II REIT
11 Fee A Colony Realty Partners II REIT
12 Fee A Colony Realty Partners II REIT
13 Fee A Colony Realty Partners II REIT
14 Fee Xxxxxxx Xxxxxxxx & Rice, Inc.,
Kohlberg Kravis Xxxxxxx & Co. L.P.
14.01 Fee
14.02 Fee
14.03 Fee
14.04 Fee
14.05 Fee
14.06 Fee
14.07 Fee
14.08 Fee
14.09 Fee
14.10 Fee
14.11 Fee
14.12 Fee
14.13 Fee
14.14 Fee
14.15 Fee
14.16 Fee
14.17 Fee
14.18 Fee
14.19 Fee
14.20 Fee
14.21 Fee
14.22 Fee
14.23 Fee
14.24 Fee
14.25 Fee
14.26 Fee
14.27 Fee
14.28 Fee
14.29 Fee
14.30 Fee
14.31 Fee
14.32 Fee
14.33 Fee
14.34 Fee
14.35 Fee
14.36 Fee
14.37 Fee
14.38 Fee
15 Fee Xxxxxxx Xxxxx, Xxxxxx Xxxxx
16 Fee HGGP Capital II, LLC
17 Fee/Leasehold STF Titan, Inc., Xxx X. Xxxxxxx,
Xxx X. Xxxxx, Xxxxx X. Xxxx
17.01 Fee/Leasehold
17.02 Fee/Leasehold
17.03 Fee/Leasehold
17.04 Fee/Leasehold
17.05 Fee/Leasehold
17.06 Fee/Leasehold
17.07 Fee/Leasehold
17.08 Fee/Leasehold
17.09 Fee/Leasehold
17.10 Fee/Leasehold
17.11 Fee/Leasehold
17.12 Fee/Leasehold
17.13 Fee/Leasehold
17.14 Fee/Leasehold
17.15 Fee/Leasehold
17.16 Fee/Leasehold
17.17 Fee/Leasehold
17.18 Fee/Leasehold
17.19 Fee/Leasehold
18 Fee RP Realty Partners Fund II, L.P.
19 Fee
20.01 Fee
20 Fee B Xxxxxx X. Xxxxx
21 Fee B Xxxxxx X. Xxxxx
22 Fee B Xxxxxx X. Xxxxx
23 Fee Corporate Property Associates 16-Global Incorporated
23.01 Fee
23.02 Fee
23.03 Fee
23.04 Fee
23.05 Fee
23.06 Fee
23.07 Fee
24 Leasehold Xxxxxx X. Xxxxxxx
00 Xxx Xxxxxxxxx Xxxxxx Partners, LTD.
26 Various Xxxxx X. Xxxxxxx
26.01 Fee
26.02 Leasehold
26.03 Fee
27 Fee Corporate Property Associates 14 Incorporated
28 Fee Xxxxxxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxxx
29 Fee Xxxxxx Xxxxxx , Xxxxxx X. Xxxxx ,
Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxxx,
Xxxxxxx Xxxxxx
30 Fee Xxxx X. Xxxxx
31 Fee Xxxx X. Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxx X. Xxxxxxxx , Xxxxxx X. Xxxxx
32 Fee Xxxxxxxx X. Xxxxxxx
33 Fee Xxxx X. Xxxxxx
34 Fee Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxx X. Xxxxxxxx,
Xxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxxxxxxx,
Beatrys X. Xxxxxxxxxx, Xxxxxx Xxxxxxxx,
Xxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx Xxxxx,
Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx X. Xxxxx,
Xxxxxx X. Xxxxx, Xxxxxxx Xxxxx, Xxxx Xxxx,
Xxxxxxx X. Xxxxxxxx, Xxxx Xx, Xxxxx Xxxxxx,
Xxxxx X. Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx,
Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxx Xxxxxxxxx,
Xxxxxxxxx Xxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx,
Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxx,
Pairat Pannara, Winita Pannara, Xxxxxxx X. Xxxxx,
Xxxxx Xxxxxxxx, Xxxx Xxxxxxx, Xxxx X. Xxxxxxxx,
Xxxx Poor,m Xxxxxx Xxxxx, Xxxxxx X. Xxxxx,
Shabab Xxxxx, Xxxxxxxx Xxx Xxxxx,
Xxxxxx X. Xxxxx, Xxxxxx X. Xx, Xxxxxx X. Xx
35 Fee Xxxxx Xxxxxxxxx Properties 36, LLC
36 Fee Sequoia Real Estate Holdings, L.P., The Xxxxx X. Xxxxxxxx &
Xxxxx X. Xxxxxxxx Revocable Trust, Xxxx Xxxxxxx and
Xxxx X. Xxxxxxx Family Trust, Xxxxxxxx and Xxxx Xxxxxx,
Xxxx X. & Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx Living Trust,
X.X. Xxxxxxxx Company, Xxxxxxx X. Xxxxxxx & Xxxxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxx Revocable Trust, Xxxxx XXxx Xxxx Trust,
Jue Family Trust, Xxxxxx Family Revocable Trust
37 Fee Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxxxxxxx
38 Fee Xxxx X. Xxxxxx
39 Fee Xxxxx X. Xxxx
40 Fee Xxxx X. Xxxxxx
41 Fee Xxxxx X. Xxx, JSS Premier Investments, LLC
42 Leasehold Xxx X. Xxxx, Xxxxxx X. Xxxx
43 Fee Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxx
44 Fee Xxxxxx Xxxxxx, G. Xxxxxxxx Xxxxxxx
45 Fee Xxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx
46 Fee Xxxxxxx X. Xxxxxxxxx
47 Leasehold The Xxxxxxx Group I, Inc.
48 Fee Xxxxxx X. Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxx
49 Fee Xxxxxx Xxxxx, Xxxxxxx Xxxxx
51 Fee Xxxxxxx X. Xxxxxxxxxxx
52 Fee/Leasehold Xxxxx Xxxxxx, Xxxx Xxxx, Xxxx Xxxxx
53 Fee Xxxx X. Xxxxxx
54 Fee Dead River Company
55 Fee Xxxxx X. Xxxxxx
56 Leasehold Xxxxxxx X. Xxxxxxxxxx
57 Fee Xxxxxxx X. Xxxxxx
58 Fee Xxxxxx X. Xxxx
59 Fee Xxxxxxx X. Xxxxx, L. Xxxxxx Xxxx
60 Fee Xxxxxx Xxxxxxxxx
61 Fee DRA F&I Fund V Real Estate Investment Trust
62 Fee
63 Fee Xxxxx X. Xxxxx
64 Fee Xxxxxxx X. Xxxxxxxxxxx
65 Fee Xxxxxxxx Xxxxxxxxxxxxxx
66 Fee Xxxxx X. Xxxxxxxx
67 Fee Columbia Sussex Corporation
68 Fee DLC Management Corporation, Delphi Commercial Properties, Inc.
69 Fee L&R Investment Company
70 Fee Xxxx X. Xxxxxxx, Xx. as Trustee of the Xxxx Xxxxxxx, Xx.,
Living Trust, Xxx Xxxxxxxxxx, Xxxxxxx Strothmeyer,
JF Investments, LLC, Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxx,
LEP Investments, Inc., Xxx Xxxxxxx, Xxx Xxxxxxx,
Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxx X. Xxxxx as Trustee of
the Xxxx X. Xxxxx Revocable Trust, Xxxxx XxXxxxxx,
Xxxxx XxXxxxxx
71 Fee D Xxxxx Xxxxxx, Xxxxx Xxxxxx
72 Fee Xxxxxxxxxx Xxxxxx
73 Fee Xxxx Xxxxx, Xxxxxxx X. Xx
74 Fee Xxxxxxx Xxxxx
75 Fee Xxxxxx Xxxxxxxx
76 Fee Xxx X. XxXxxxx, Xx., Xxxxx XxXxxxx
77 Fee Xxxx Caller, Xxxxx Xxxxxxx
78 Fee Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx
79 Fee Xxxxxxx X. Xxxxxxxxxxx
80 Fee Xxxxxx Xxxxxx , Xxxxx Xxxxxxx
81 Fee Xxxxxxx Xxx Xxxxxxx
82 Fee Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx
83 Fee Xxxx X. Xxxxx
84 Fee Xxxxxx X. Xxxxxxxxxx
85 Fee Corporate Property Associates 16-Global Incorporated
85.01 Fee
85.02 Fee
85.03 Fee
86 Fee C. Xxxxx Xxxxxx, Xxxx X. XxXxxx, Xxxxxxx X. Xxxx
87 Fee Xxxx X. Xxxxxxxx
88 Fee Adrian Socolsky
89 Fee Harvey A. Schultz, Jonathan B. Schultz, Steven M. Schultz
90 Fee Tri-State Commericial Associates
91 Fee Patrick J. O'Connell
92 Fee Patrick J. O'Connell
93 Fee/Leasehold Seth Oliver
94 Fee Alan E. Ferris, Madeleine S. Ferris
95 Fee David H. Hoffmann
96 Fee Anthony Jon Sherman
97 Fee Ben Weil, Jr., Julian Blum
98 Fee James B. Vaughn, Justin M. Vaughn, Thomas C. McKee
99 Fee Dorothy Vogel, Gordon Vogel
100 Fee International Institute of Boston, Inc.
101 Fee Raymond K. Janson
102 Fee Alan E. Ferris, Madeleine S. Ferris
103 Fee William H. Laughlin
104 Fee Robert Geiserman
105 Fee Corporate Property Associates 14 Incorporated
106 Fee D Manoj Bhoola, Mohan Bhoola
107 Fee Mark Kaufman
108 Fee C Cole Operating Partnership II, LP
109 Leasehold Jeffrey K. Woodbury, Steven H. Stokes, Gary Knighton
110 Fee Paul T. Aase, Leigh C. Roberts
111 Fee C Cole Operating Partnership II, LP
112 Fee C. Scott Shanks, Mack H. DuBose, Michael J. Hess
113 Fee Edward Ross
114 Fee Jaswant S. Multani
115 Fee Yehuda Cohen
115.01 Fee
115.02 Fee
116 Fee Jaren Nielson, Fred Cooper, Mark Wilson
117 Fee Cole Operating Partnership II, LP
118 Fee Erez Lapsker
119 Fee Cole Operating Partnership II, LP
120 Fee Jim Tally, John McAndrew
121 Fee Kailash R. Joshi, Trusha K. Joshi, Parmatha Beri, Tina Tajiri
122 Fee Edward R. Feinberg; Rex S. Ruthman
123 Fee Spencer M. Partrich
124 Fee Lavern E. Martinez
125 Fee CMS Educational Assets Fund, L.P.
126 Fee Jeffrey Roche
127 Fee John Paul Micek, Joseph G. Ranalli, Daniel L. McCluskey,
Pamela Adams, Phillip A. Henry, Li Cai, Conrad Jay Schaap,
Mildred Reona Schaap, David Kauffman, Kenneth K. Ebel,
Scott Wright
128 Fee Alex Halberstein
129 Fee John P. Hooten, Thomas Nathan Clark
130 Fee Daniel J. Flynn, III
131 Fee Bryan Becker, David Becker, John E. Day III,
Mount Vernon Centre Associates LLC
132 Fee John P. Hooten
133 Fee Patrick O'Connor
134 Fee Gregory Maidman, Mitchel Maidman
135 Fee Anthony Tarantino
136 Fee Philip W. Stewart
137 Fee Stephen M. Zotovich, Michael E. Meyer, Bruce Ibbetson
138 Fee Randy Simonson, John Batzer
139 Fee Mitchel Maidman, Gregory Maidman
140 Fee Gregory Maidman, Mitchel Maidman
141 Fee Alan S. Mann, William Hutchinson
142 Leasehold Robert Breunig, Edward O. Breunig, III, Thomas Degoey
143 Fee Gregory Maidman, Mitchel Maidman
144 Fee Edward Ross
UPFRONT ESCROW
-------------------------------------------------------------------------------------------------------------
Upfront Upfront Upfront Upfront Upfront Upfront Upfront
Letter of CapEx Eng. Envir. TI/LC RE Tax Ins. Other
Loan # Credit Reserve Reserve Reserve Reserve Reserve Reserve Reserve
---------------------------------------------------------------------------------------------------------------------------------
1 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
2 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
3 No 0.00 0.00 0.00 34,370.15 440,687.79 0.00 435,000.00
4 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
5.01 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
5 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
6 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
7 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
8 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
9 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
10 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
11 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
12 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
13 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
14 No 0.00 0.00 0.00 0.00 0.00 0.00 6,938,963.00
14.01
14.02
14.03
14.04
14.05
14.06
14.07
14.08
14.09
14.10
14.11
14.12
14.13
14.14
14.15
14.16
14.17
14.18
14.19
14.20
14.21
14.22
14.23
14.24
14.25
14.26
14.27
14.28
14.29
14.30
14.31
14.32
14.33
14.34
14.35
14.36
14.37
14.38
15 No 0.00 892,100.00 0.00 400,000.00 283,959.93 23,618.94 437,734.00
16 No 4,070,000.00 0.00 0.00 0.00 417,280.57 0.00 0.00
17 No 0.00 98,992.30 0.00 0.00 467,052.00 114,031.84 0.00
17.01
17.02
17.03
17.04
17.05
17.06
17.07
17.08
17.09
17.10
17.11
17.12
17.13
17.14
17.15
17.16
17.17
17.18
17.19
18 No 15,205.00 0.00 0.00 0.00 1,080,000.00 0.00 1,889,700.00
19 No 0.00 21,250.00 0.00 0.00 0.00 0.00 0.00
20.01 472,834.0 0.00 120,908.00 0.00 0.00 0.00 0.00 0.00
20 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
21 No 0.00 120,908.00 0.00 0.00 0.00 0.00 0.00
22 472,834.0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
23 No 0.00 0.00 1,283,250.00 0.00 0.00 0.00 0.00
23.01
23.02
23.03
23.04
23.05
23.06
23.07
24 No 0.00 0.00 0.00 0.00 314,419.97 15,677.08 0.00
25 No 0.00 359,644.00 0.00 468,000.00 0.00 85,130.63 0.00
26 1,800,000.0 0.00 0.00 0.00 0.00 63,779.85 6,026.67 0.00
26.01
26.02
26.03
27 995,000.0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
28 No 0.00 0.00 0.00 0.00 32,916.66 10,515.25 0.00
29 No 0.00 0.00 0.00 0.00 85,790.00 83,161.42 0.00
30 No 0.00 0.00 0.00 6,538,400.00 45,112.36 17,377.54 1,168,334.00
31 No 1,568.89 0.00 0.00 2,500.00 136,732.00 31,965.67 4,100,000.00
32 No 1,414.60 0.00 0.00 100,000.00 102,945.53 24,460.67 0.00
33 No 0.00 48,125.00 0.00 0.00 73,500.00 16,715.50 0.00
34 No 0.00 0.00 0.00 0.00 176,196.81 54,122.94 0.00
35 No 2,179.17 28,125.00 0.00 0.00 476,752.67 0.00 0.00
36 No 5,431.50 0.00 0.00 0.00 369,624.17 15,362.50 500,000.00
37 No 0.00 0.00 0.00 0.00 0.00 0.00 425,000.00
38 No 0.00 0.00 0.00 0.00 75,000.00 15,616.50 0.00
39 550,000.0 0.00 0.00 0.00 0.00 85,333.33 19,596.75 0.00
40 No 5,875.00 0.00 0.00 0.00 34,333.33 13,023.00 0.00
41 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
42 No 0.00 0.00 0.00 494,854.80 341,197.77 11,234.25 14,473.00
43 No 0.00 0.00 0.00 281,000.00 35,777.92 21,467.33 0.00
44 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
45 No 1,131.28 0.00 151,719.00 3,334.00 86,564.88 6,584.17 0.00
46 No 32,094.75 86,421.00 0.00 0.00 130,512.59 139,916.33 0.00
47 No 0.00 0.00 0.00 0.00 15,789.88 2,815.83 0.00
48 No 1,166.67 0.00 0.00 0.00 0.00 0.00 301,209.18
49 No 0.00 0.00 0.00 0.00 27,193.75 26,781.38 0.00
51 No 3,267.00 0.00 0.00 0.00 144,333.75 78,793.08 0.00
52 No 0.00 0.00 0.00 0.00 16,960.86 20,944.66 0.00
53 No 0.00 0.00 0.00 0.00 56,437.50 14,140.00 0.00
54 No 989.02 0.00 0.00 3,412,983.60 25,686.81 8,363.92 0.00
55 No 1,535.92 0.00 0.00 7,500.00 11,641.07 9,864.67 0.00
56 No 85,776.00 0.00 0.00 250,000.00 218,868.00 20,345.00 197,889.00
57 No 0.00 5,000.00 0.00 0.00 135,717.14 43,167.83 0.00
58 No 0.00 0.00 0.00 70,200.00 10,488.84 1,234.91 3,333.33
59 No 0.00 0.00 0.00 600,000.00 48,933.76 0.00 0.00
60 No 0.00 0.00 0.00 0.00 43,775.53 16,233.33 0.00
61 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
62 No 0.00 6,250.00 0.00 0.00 0.00 0.00 0.00
63 No 919.81 0.00 0.00 1,250.00 6,562.77 5,676.07 0.00
64 No 3,100.00 0.00 0.00 0.00 130,715.43 44,829.25 0.00
65 No 3,316.00 0.00 0.00 0.00 29,218.35 10,095.27 0.00
66 200,000.0 0.00 0.00 0.00 0.00 122,400.69 10,042.50 0.00
67 No 13,163.42 0.00 0.00 0.00 26,512.69 11,022.00 0.00
68 No 0.00 490,987.50 0.00 0.00 62,922.42 0.00 5,146.83
69 No 758.33 0.00 0.00 0.00 91,618.50 0.00 0.00
70 No 563.00 0.00 0.00 2,083.00 67,110.75 48,250.00 0.00
71 No 6,933.92 0.00 0.00 0.00 108,513.33 26,897.38 0.00
72 No 815.80 0.00 0.00 100,000.00 72,916.67 22,141.00 0.00
73 No 0.00 0.00 0.00 200,000.00 98,705.14 4,512.50 0.00
74 No 384.13 10,813.00 0.00 1,280.40 85,233.88 11,653.99 0.00
75 No 6,419.50 33,462.00 0.00 0.00 112,825.87 56,228.08 0.00
76 No 10,670.42 0.00 0.00 0.00 71,500.00 13,806.67 0.00
77 No 0.00 2,387.50 0.00 0.00 15,412.78 42,225.46 0.00
78 No 1,250.00 0.00 0.00 0.00 185,684.91 22,541.66 2,000,000.00
79 No 2,300.00 0.00 0.00 0.00 67,332.97 31,182.83 0.00
80 No 8,303.17 24,750.00 0.00 0.00 52,784.54 28,791.39 0.00
81 500,000.0 100,000.00 0.00 0.00 0.00 56,966.87 23,443.00 0.00
82 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
83 No 0.00 0.00 0.00 0.00 25,943.63 4,866.67 32,900.00
84 No 2,726.29 0.00 6,250.00 0.00 0.00 0.00 0.00
85 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
85.01
85.02
85.03
86 No 0.00 0.00 0.00 264,604.50 0.00 6,957.59 0.00
87 No 0.00 14,772.00 0.00 0.00 26,692.80 17,311.96 900,000.00
88 No 868.83 0.00 0.00 0.00 36,398.08 3,968.33 0.00
89 No 666.63 0.00 0.00 0.00 20,699.20 10,819.64 0.00
90 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
91 No 0.00 74,000.00 0.00 100,000.00 142,817.74 5,899.13 0.00
92 No 250,000.00 21,437.50 0.00 200,000.00 125,271.68 8,868.21 0.00
93 No 0.00 0.00 0.00 0.00 27,086.33 18,393.96 0.00
94 No 0.00 0.00 0.00 0.00 103,840.92 30,129.75 850,000.00
95 No 0.00 0.00 0.00 500,000.00 8,331.81 1,397.58 0.00
96 No 100,000.00 0.00 0.00 0.00 13,907.50 5,152.25 0.00
97 No 1,076.00 0.00 0.00 200,000.00 84,241.64 3,760.75 148,664.09
98 No 2,330.25 35,855.00 0.00 0.00 18,461.83 8,114.67 200,000.00
99 No 0.00 19,305.00 0.00 0.00 16,170.13 531.67 0.00
100 No 0.00 31,763.75 2,250.00 0.00 0.00 0.00 0.00
101 No 0.00 0.00 6,000.00 0.00 0.00 0.00 0.00
102 No 0.00 0.00 0.00 0.00 61,252.61 47,145.23 0.00
103 No 0.00 5,250.00 0.00 0.00 0.00 0.00 0.00
104 No 44,000 0.00 0.00 100,000.00 116,250.00 33,907.75 0.00
105 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
106 No 7,316.75 0.00 0.00 0.00 87,561.59 16,110.20 0.00
107 No 1,057.77 0.00 0.00 120,000.00 46,154.67 4,608.25 1,500,000.00
108 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
109 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
110 No 0.00 0.00 0.00 0.00 54,594.51 3,744.50 0.00
111 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
112 No 0.00 0.00 0.00 0.00 4,085.31 4,185.00 0.00
113 No 97,111 0.00 0.00 150,000.00 26,966.55 7,236.33 300,000.00
114 No 0.00 0.00 0.00 0.00 59,583.00 14,808.00 139,012.00
115 No 745 38,343.75 0.00 4,166.67 0.00 6,897.86 0.00
115.01
115.02
116 No 1,532.00 0.00 0.00 0.00 36,087.00 17,550.83 100,000.00
117 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
118 No 1,247.25 15,725.00 0.00 3,500.00 15,833.33 6,814.17 0.00
119 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
120 No 689.80 0.00 0.00 2,299.33 67,552.12 18,061.33 0.00
121 No 0.00 52,567.50 0.00 0.00 37,176.15 8,824.33 0.00
122 No 0.00 0.00 0.00 0.00 14,723.54 5,911.13 0.00
123 No 0.00 0.00 0.00 60,000.00 49,645.66 0.00 0.00
124 No 0.00 25,000.00 0.00 0.00 0.00 0.00 0.00
125 No 0.00 0.00 0.00 500,000.00 0.00 0.00 8,211.00
126 No 466.67 0.00 0.00 0.00 10,469.67 8,272.00 0.00
127 No 0.00 0.00 0.00 0.00 30,445.32 16,998.33 55,000.00
128 No 0.00 0.00 0.00 0.00 76,666.67 6,220.75 0.00
129 No 216,702.50 7,500.00 0.00 1,250.00 31,012.39 5,670.83 72,835.34
130 No 508.16 0.00 0.00 3,334.00 20,786.25 28,416.67 0.00
131 No 921.90 20,932.50 0.00 0.00 8,473.67 9,943.08 0.00
132 No 0.00 0.00 0.00 0.00 51,351.00 8,006.37 0.00
133 No 0.00 12,816.25 0.00 0.00 48,656.67 7,647.67 0.00
134 No 583.33 0.00 0.00 0.00 58,178.03 7,498.93 0.00
135 No 0.00 225,000.00 0.00 0.00 37,506.12 14,391.22 0.00
136 No 0.00 4,375.00 0.00 0.00 12,013.53 3,975.89 0.00
137 No 0.00 0.00 0.00 0.00 24,900.00 5,350.00 0.00
138 No 169.75 0.00 0.00 792.00 9,535.17 2,447.92 0.00
139 No 333.33 0.00 0.00 0.00 53,081.84 6,267.19 0.00
140 No 500.00 0.00 0.00 0.00 51,867.33 7,418.88 0.00
141 No 1,238.16 0.00 0.00 125,000.00 15,900.00 7,364.50 0.00
142 No 0.00 0.00 0.00 0.00 4,235.47 1,875.00 0.00
143 No 416.67 0.00 0.00 0.00 33,294.03 6,156.85 0.00
144 No 0.00 0.00 0.00 0.00 27,275.25 1,425.50 0.00
MONTHLY ESCROW
------------------------------------------------------------------------------------------------------------
Monthly Monthly Monthly Monthly Monthly Monthly
Capex Envir. TI/LC RE Tax Ins. Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve
--------------------------------------------------------------------------------------------------------------------------------
1 0.00 0.00 0.00 0.00 0.00 0.00
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
2 0.00 0.00 0.00 0.00 0.00 0.00
3 0.00 0.00 0.00 55085.97 0.00 0.00
4 0.00 0.00 0.00 0.00 0.00 0.00
5.01 0.00 0.00 0.00 0.00 0.00 0.00
5 0.00 0.00 0.00 0.00 0.00 0.00
6 0.00 0.00 0.00 0.00 0.00 0.00
7 0.00 0.00 0.00 0.00 0.00 0.00
8 0.00 0.00 0.00 0.00 0.00 0.00
9 0.00 0.00 0.00 0.00 0.00 0.00
10 0.00 0.00 0.00 0.00 0.00 0.00
11 0.00 0.00 0.00 0.00 0.00 0.00
12 0.00 0.00 0.00 0.00 0.00 0.00
13 0.00 0.00 0.00 0.00 0.00 0.00
14 0.00 0.00 0.00 0.00 0.00 0.00
14.01
14.02
14.03
14.04
14.05
14.06
14.07
14.08
14.09
14.10
14.11
14.12
14.13
14.14
14.15
14.16
14.17
14.18
14.19
14.20
14.21
14.22
14.23
14.24
14.25
14.26
14.27
14.28
14.29
14.30
14.31
14.32
14.33
14.34
14.35
14.36
14.37
14.38
15 8763.25 0.00 0.00 94653.31 4723.79 0.00
16 0.00 0.00 0.00 46364.51 0.00 0.00
17 6001.37 0.00 25005.70 51894.67 12670.20 0.00
17.01
17.02
17.03
17.04
17.05
17.06
17.07
17.08
17.09
17.10
17.11
17.12
17.13
17.14
17.15
17.16
17.17
17.18
17.19
18 1521.00 0.00 8363.00 90000.00 0.00 0.00
19 0.00 0.00 0.00 0.00 0.00 0.00
20.01 5587.00 0.00 0.00 0.00 0.00 0.00
20 3887.50 0.00 0.00 0.00 0.00 0.00
21 1307.83 0.00 0.00 0.00 0.00 0.00
22 391.67 0.00 0.00 0.00 0.00 0.00
23 0.00 0.00 0.00 0.00 0.00 0.00
23.01
23.02
23.03
23.04
23.05
23.06
23.07
24 0.00 0.00 83333.00 31442.00 3135.42 0.00
25 2550.25 0.00 0.00 49092.75 18917.92 0.00
26 0.00 0.00 0.00 12442.05 3013.33 0.00
26.01
26.02
26.03
27 0.00 0.00 0.00 0.00 0.00 0.00
28 0.00 0.00 0.00 32916.66 10515.25 0.00
29 0.00 0.00 0.00 42895.00 11880.20 0.00
30 886.33 0.00 0.00 22556.18 2044.42 0.00
31 1568.89 0.00 2500.00 17091.50 7991.42 0.00
32 1414.60 0.00 9430.67 12868.19 3057.58 0.00
33 7500.00 0.00 0.00 10500.00 2785.92 0.00
34 5500.00 0.00 0.00 16017.89 21649.18 0.00
35 2179.17 0.00 0.00 36673.28 0.00 0.00
36 5431.50 0.00 0.00 36962.42 5120.83 0.00
37 0.00 0.00 0.00 0.00 0.00 0.00
38 6250.00 0.00 0.00 12500.00 2602.75 0.00
39 833.29 0.00 2416.67 42666.67 2177.42 0.00
40 5875.00 0.00 0.00 8583.33 2170.50 0.00
41 1664.00 0.00 0.00 0.00 0.00 0.00
42 0.00 0.00 0.00 32495.91 1248.25 0.00
43 1821.50 0.00 9000.00 8944.48 1651.33 0.00
44 0.00 0.00 0.00 0.00 0.00 0.00
45 1131.28 0.00 3334.00 28854.96 3292.08 0.00
46 32094.75 0.00 0.00 12713.79 11283.08 0.00
47 0.00 0.00 0.00 15789.88 1407.92 0.00
48 1166.67 0.00 0.00 0.00 0.00 0.00
49 1350.98 0.00 5413.00 27193.75 2434.67 0.00
51 3267.00 0.00 0.00 16037.08 9733.84 0.00
52 4825.00 0.00 0.00 8480.43 2618.08 0.00
53 6271.00 0.00 0.00 9406.25 2356.67 0.00
54 989.02 0.00 0.00 8562.27 1361.08 0.00
55 1535.92 0.00 7500.00 2910.27 1233.08 0.00
56 2235.00 0.00 5,957 27358.50 3390.83 0.00
57 964.74 0.00 0.00 15079.68 14389.28 0.00
58 0.00 0.00 0.00 0.00 0.00 0.00
59 2624.34 0.00 0.00 24466.88 0.00 0.00
60 1039.00 0.00 3470.00 14591.84 1803.70 0.00
61 3516.67 0.00 0.00 0.00 0.00 0.00
62 2447.64 0.00 6500.00 0.00 0.00 0.00
63 919.81 0.00 1250.00 2187.59 618.12 0.00
64 3100.00 0.00 0.00 14523.94 3827.33 0.00
65 3,316 0.00 0.00 29218.35 10095.27 0.00
66 0.00 0.00 0.00 24480.14 1115.83 0.00
67 13163.42 0.00 0.00 8837.56 0.00 0.00
68 1279.88 0.00 0.00 10487.07 0.00 0.00
69 758.33 0.00 0.00 15269.75 0.00 0.00
70 563.00 0.00 2083.00 9587.25 8041.67 0.00
71 6933.92 0.00 0.00 10851.33 6596.00 0.00
72 815.80 0.00 4167.00 10416.67 1845.08 0.00
73 1511.09 0.00 0.00 12338.14 1504.47 0.00
74 384.13 0.00 1280.40 9470.43 2330.80 0.00
75 6419.50 0.00 0.00 24559.92 5513.00 0.00
76 10670.42 0.00 0.00 6500.00 1380.67 0.00
77 0.00 0.00 0.00 15412.78 4222.55 0.00
78 1250.00 0.00 0.00 23210.61 1733.97 0.00
79 2300.00 0.00 0.00 7481.44 2666.50 0.00
80 8303.17 0.00 0.00 7540.65 5402.69 0.00
81 8977.34 0.00 0.00 6329.65 1674.50 0.00
82 0.00 0.00 0.00 0.00 0.00 0.00
83 206.87 0.00 2197.00 12971.81 608.33 0.00
84 2726.29 0.00 0.00 0.00 0.00 0.00
85 0.00 0.00 0.00 0.00 0.00 0.00
85.01
85.02
85.03
86 0.00 0.00 0.00 0.00 750.07 0.00
87 1329.17 0.00 0.00 2669.28 1573.81 0.00
88 868.83 0.00 0.00 3308.92 992.08 0.00
89 0.00 0.00 0.00 0.00 0.00 0.00
90 0.00 0.00 0.00 0.00 0.00 0.00
91 1684.58 0.00 3750.00 12983.43 1179.83 0.00
92 1250.00 0.00 2600.00 11388.33 1773.64 0.00
93 10171.92 0.00 0.00 13543.17 3065.66 0.00
94 3467.00 0.00 0.00 14834.42 4304.25 0.00
95 0.00 0.00 0.00 8331.81 1397.58 0.00
96 0.00 0.00 0.00 4635.83 1717.42 0.00
97 1076.00 0.00 0.00 10530.21 1253.58 0.00
98 2330.25 0.00 0.00 9230.92 2028.67 0.00
99 0.00 0.00 0.00 8085.07 265.83 0.00
100 0.00 0.00 0.00 0.00 0.00 0.00
101 0.00 0.00 0.00 0.00 0.00 0.00
102 2467.00 0.00 0.00 7656.58 6735.03 0.00
103 275.00 0.00 0.00 0.00 0.00 0.00
104 1187.50 0.00 0.00 12916.67 5546.00 0.00
105 0.00 0.00 0.00 0.00 0.00 0.00
106 7316.75 0.00 0.00 8756.16 5370.00 0.00
107 1057.77 0.00 0.00 5769.33 1536.08 0.00
108 0.00 0.00 0.00 0.00 0.00 0.00
109 0.00 0.00 0.00 0.00 0.00 0.00
110 2537.33 0.00 2388.67 4549.54 1248.17 0.00
111 332.50 0.00 3325.00 0.00 0.00 0.00
112 0.00 0.00 0.00 1021.33 418.50 0.00
113 2110.80 0.00 0.00 2996.40 1809.08 0.00
114 0.00 0.00 0.00 5417.00 3702.00 0.00
115 745 0.00 4166.67 0.00 2299.29 0.00
115.01
115.02
116 1532.00 0.00 0.00 6413.69 1604.35 0.00
117 0.00 0.00 0.00 0.00 0.00 0.00
118 1247.25 0.00 3500.00 7916.67 681.42 0.00
119 0.00 0.00 0.00 0.00 0.00 0.00
120 689.80 0.00 2299.33 7505.79 1389.33 0.00
121 6114.21 0.00 0.00 5310.88 2206.08 0.00
122 1247.70 0.00 0.00 7361.77 1970.38 0.00
123 369.49 0.00 3000.00 7092.24 0.00 0.00
124 0.00 0.00 0.00 0.00 0.00 0.00
125 0.00 0.00 0.00 0.00 0.00 0.00
126 466.67 0.00 0.00 2617.42 785.00 0.00
127 2338.21 0.00 0.00 7611.33 3399.66 0.00
128 0.00 0.00 1000.00 7666.67 2073.58 0.00
129 303.00 0.00 1250.00 3876.55 567.08 0.00
130 508.16 0.00 3334.00 6928.75 2583.33 0.00
131 921.90 0.00 0.00 4236.83 903.92 0.00
132 272.00 0.00 815.00 4279.25 4003.18 0.00
133 1959.51 0.00 5287.42 6082.08 1911.92 0.00
134 583.33 0.00 0.00 7272.25 576.84 0.00
135 2500.00 0.00 0.00 5358.02 4797.07 0.00
136 1782.92 0.00 0.00 4004.51 1987.95 0.00
137 326.67 0.00 2450.17 6225.00 445.83 0.00
138 169.75 0.00 792.00 794.60 489.58 0.00
139 333.33 0.00 0.00 6635.23 482.09 0.00
140 500.00 0.00 0.00 6483.42 570.68 0.00
141 1238.16 0.00 4127.00 1766.67 1227.42 0.00
142 183.67 0.00 0.00 4235.47 208.33 0.00
143 416.67 0.00 0.00 4161.75 473.60 0.00
144 0.00 0.00 0.00 3409.41 475.17 0.00
Remaining
Interest Final Amortization
Grace Lockbox Property Defeasance Accrual Loan Maturity Term for
Loan # Period In-place Type Permitted Period Group Date Balloon Loans
----------------------------------------------------------------------------------------------------------------------------------
1 7 Yes Retail Yes Actual/360 1 360
1.01 7 Retail Actual/360 1 360
1.02 7 Retail Actual/360 1 360
1.03 7 Retail Actual/360 1 360
1.04 7 Retail Actual/360 1 360
1.05 7 Retail Actual/360 1 360
1.06 7 Retail Actual/360 1 360
1.07 7 Retail Actual/360 1 360
1.08 7 Retail Actual/360 1 360
1.09 7 Retail Actual/360 1 360
1.10 7 Retail Actual/360 1 360
1.11 7 Retail Actual/360 1 360
1.12 7 Retail Actual/360 1 360
1.13 7 Retail Actual/360 1 360
1.14 7 Retail Actual/360 1 360
1.15 7 Retail Actual/360 1 360
1.16 7 Retail Actual/360 1 360
1.17 7 Retail Actual/360 1 360
1.18 7 Retail Actual/360 1 360
2 5 Yes Retail Yes Actual/360 1
3 0 Yes Retail Yes Actual/360 1
4 5 Yes Retail Yes Actual/360 1
5.01 0 Yes Various Yes Actual/360 1
5 0 Yes Office Yes Actual/360 1
6 0 Yes Office Yes Actual/360 1
7 0 Yes Office Yes Actual/360 1
8 0 Yes Industrial Yes Actual/360 1
9 0 Yes Office Yes Actual/360 1
10 0 Yes Industrial Yes Actual/360 1
11 0 Yes Industrial Yes Actual/360 1
12 0 Yes Industrial Yes Actual/360 1
13 0 Yes Industrial Yes Actual/360 1
14 10 Yes Various Yes Actual/360 1
14.01 10 Industrial Actual/360 1
14.02 10 Industrial Actual/360 1
14.03 10 Industrial Actual/360 1
14.04 10 Industrial Actual/360 1
14.05 10 Industrial Actual/360 1
14.06 10 Industrial Actual/360 1
14.07 10 Industrial Actual/360 1
14.08 10 Industrial Actual/360 1
14.09 10 Industrial Actual/360 1
14.10 10 Industrial Actual/360 1
14.11 10 Industrial Actual/360 1
14.12 10 Industrial Actual/360 1
14.13 10 Industrial Actual/360 1
14.14 10 Industrial Actual/360 1
14.15 10 Industrial Actual/360 1
14.16 10 Industrial Actual/360 1
14.17 10 Industrial Actual/360 1
14.18 10 Industrial Actual/360 1
14.19 10 Industrial Actual/360 1
14.20 10 Industrial Actual/360 1
14.21 10 Industrial Actual/360 1
14.22 10 Industrial Actual/360 1
14.23 10 Industrial Actual/360 1
14.24 10 Industrial Actual/360 1
14.25 10 Office Actual/360 1
14.26 10 Industrial Actual/360 1
14.27 10 Industrial Actual/360 1
14.28 10 Industrial Actual/360 1
14.29 10 Industrial Actual/360 1
14.30 10 Industrial Actual/360 1
14.31 10 Industrial Actual/360 1
14.32 10 Industrial Actual/360 1
14.33 10 Industrial Actual/360 1
14.34 10 Industrial Actual/360 1
14.35 10 Industrial Actual/360 1
14.36 10 Industrial Actual/360 1
14.37 10 Industrial Actual/360 1
14.38 10 Industrial Actual/360 1
15 7 No Office Yes Actual/360 1 360
16 5 No Multifamily Yes Actual/360 2 360
17 5 No Industrial Yes Actual/360 1 360
17.01 5 Industrial Actual/360 1 360
17.02 5 Industrial Actual/360 1 360
17.03 5 Industrial Actual/360 1 360
17.04 5 Industrial Actual/360 1 360
17.05 5 Industrial Actual/360 1 360
17.06 5 Industrial Actual/360 1 360
17.07 5 Industrial Actual/360 1 360
17.08 5 Industrial Actual/360 1 360
17.09 5 Industrial Actual/360 1 360
17.10 5 Industrial Actual/360 1 360
17.11 5 Industrial Actual/360 1 360
17.12 5 Industrial Actual/360 1 360
17.13 5 Industrial Actual/360 1 360
17.14 5 Industrial Actual/360 1 360
17.15 5 Industrial Actual/360 1 360
17.16 5 Industrial Actual/360 1 360
17.17 5 Industrial Actual/360 1 360
17.18 5 Industrial Actual/360 1 360
17.19 5 Industrial Actual/360 1 360
18 7 No Retail Yes Actual/360 1 360
19 7 No Hotel Yes Actual/360 1
20.01 10 No Manufactured Housing Yes Actual/360 2 360
20 10 No Manufactured Housing Yes Actual/360 2 360
21 10 No Manufactured Housing Yes Actual/360 2 360
22 10 No Manufactured Housing Yes Actual/360 2 360
23 7 No Industrial Yes Actual/360 1 360
23.01 7 Industrial Actual/360 1 360
23.02 7 Industrial Actual/360 1 360
23.03 7 Industrial Actual/360 1 360
23.04 7 Industrial Actual/360 1 360
23.05 7 Industrial Actual/360 1 360
23.06 7 Industrial Actual/360 1 360
23.07 7 Industrial Actual/360 1 360
24 7 No Office Yes Actual/360 1 360
25 5 No Mixed Use Yes Actual/360 1 360
26 5 No Retail Yes Actual/360 1 300
26.01 5 Retail Actual/360 1 300
26.02 5 Retail Actual/360 1 300
26.03 5 Retail Actual/360 1 300
27 10 No Retail Yes Actual/360 1 360
28 5 Yes Mixed Use No 30/360 2 360
29 7 No Hotel Yes Actual/360 1
30 7 Yes Office Yes Actual/360 1 264
31 7 No Retail No Actual/360 1 360
32 7 No Mixed Use Yes Actual/360 1 360
33 7 No Multifamily No Actual/360 2 360
34 7 No Multifamily Yes Actual/360 2 360
35 7 No Parking Garage Yes Actual/360 1 360
36 7 No Multifamily Yes Actual/360 2 360
37 7 No Office Yes Actual/360 1 360
38 7 No Multifamily No Actual/360 2 360
39 7 No Retail Yes Actual/360 1 360
40 7 No Multifamily No Actual/360 2 360
41 7 Yes Office Yes Actual/360 1 360
42 7 No Office Yes Actual/360 1 360
43 7 No Mixed Use Yes Actual/360 1 360
44 7 No Industrial Yes Actual/360 1 360
45 7 No Retail Yes Actual/360 1 360
46 7 No Hotel Yes Actual/360 1 360
47 10 No Office No Actual/360 1 360
48 7 No Office Yes Actual/360 1 360
49 7 No Retail Yes Actual/360 1 360
51 7 No Multifamily Yes Actual/360 2 360
52 7 No Multifamily Yes Actual/360 2 360
53 7 No Multifamily No Actual/360 2 360
54 7 No Office Yes Actual/360 1
55 7 No Office No Actual/360 1 360
56 5 No Retail Yes Actual/360 1 360
57 10 No Retail Yes Actual/360 1 360
58 7 No Office Yes Actual/360 1 360
59 7 No Office Yes Actual/360 1 360
60 7 No Retail Yes Actual/360 1 360
61 7 No Office Yes Actual/360 1
62 7 No Office Yes Actual/360 1 360
63 7 No Retail Yes Actual/360 1 360
64 7 No Multifamily Yes Actual/360 2 360
65 7 No Multifamily Yes Actual/360 2 360
66 10 No Office Yes Actual/360 1 360
67 7 No Hotel Yes Actual/360 1 360
68 7 No Retail Yes Actual/360 1 360
69 7 No Parking Garage Yes Actual/360 1 360
70 7 No Retail Yes Actual/360 1 360
71 7 No Hotel Yes Actual/360 1 360
72 7 No Office Yes Actual/360 1 360
73 7 No Office Yes Actual/360 1 360
74 7 No Retail Yes Actual/360 1 360
75 7 No Hotel Yes Actual/360 1 360
76 7 No Hotel Yes Actual/360 1 300
77 10 No Multifamily Yes Actual/360 2 360
78 7 No Multifamily Yes Actual/360 2
79 7 No Multifamily Yes Actual/360 2 360
80 7 No Hotel Yes Actual/360 1 360
81 15 No Hotel Yes Actual/360 1 360
82 7 No Office Yes Actual/360 1 360
83 7 Yes Office Yes Actual/360 1 300
84 7 No Industrial Yes Actual/360 1 240
85 7 No Various Yes Actual/360 1 360
85.01 7 Retail Actual/360 1 360
85.02 7 Mixed Use Actual/360 1 360
85.03 7 Retail Actual/360 1 360
86 7 No Retail No Actual/360 1 360
87 10 No Manufactured Housing Yes Actual/360 2 360
88 7 No Office Yes Actual/360 1 360
89 7 No Office Yes Actual/360 1 360
90 7 No Retail Yes Actual/360 1 180
91 7 No Office Yes Actual/360 1 360
92 7 No Industrial Yes Actual/360 1 360
93 7 No Hotel Yes Actual/360 1 360
94 7 No Multifamily Yes Actual/360 2 360
95 7 No Office Yes Actual/360 1 360
96 7 No Hotel Yes Actual/360 1 360
97 7 No Office Yes Actual/360 1 360
98 7 No Multifamily Yes Actual/360 2
99 7 No Retail Yes Actual/360 1 360
100 7 No Office No Actual/360 1
101 7 Yes Industrial Yes Actual/360 1 240
102 7 No Multifamily Yes Actual/360 2 360
103 10 No Office Yes Actual/360 1 360
104 7 No Office Yes Actual/360 1 360
105 10 Yes Mixed Use Yes Actual/360 1 360
106 7 No Hotel Yes Actual/360 1 360
107 7 No Retail Yes Actual/360 1 360
108 8 No Retail Yes Actual/360 1
109 7 No Office Yes Actual/360 1 360
110 7 No Retail Yes Actual/360 1 360
111 8 No Retail Yes Actual/360 1 360
112 7 No Retail No Actual/360 1 360
113 7 No Retail Yes Actual/360 1 360
114 7 No Hotel No Actual/360 1 300
115 7 No Office Yes Actual/360 1 360
115.01 7 Office Actual/360 1 360
115.02 7 Office Actual/360 1 360
116 7 No Multifamily Yes Actual/360 1 360
117 8 No Retail Yes Actual/360 1
118 7 No Office Yes Actual/360 1 360
119 8 No Retail Yes Actual/360 1
120 7 No Mixed Use No Actual/360 1 360
121 7 No Hotel Yes Actual/360 1 360
122 10 No Multifamily Yes Actual/360 2 360
123 10 No Industrial Yes Actual/360 1 360
124 7 Yes Retail No Actual/360 1 300
125 7 Yes Office Yes Actual/360 1 360
126 7 No Multifamily Yes Actual/360 2 360
127 7 No Multifamily Yes Actual/360 2
128 7 No Retail Yes Actual/360 1 360
129 7 No Retail No Actual/360 1 360
130 7 No Office Yes Actual/360 1 360
131 7 No Office Yes Actual/360 1
132 7 No Retail Yes Actual/360 1 240
133 7 No Office Yes Actual/360 1 360
134 7 No Multifamily Yes Actual/360 2
135 7 No Multifamily Yes Actual/360 2 360
136 7 No Multifamily Yes Actual/360 2
137 7 No Office Yes Actual/360 1
138 7 No Retail Yes Actual/360 1 360
139 7 No Multifamily Yes Actual/360 2
140 7 No Multifamily Yes Actual/360 2
141 7 No Retail Yes Actual/360 1 360
142 7 Yes Retail No Actual/360 1 228
143 7 No Multifamily Yes Actual/360 2
144 7 No Retail Yes Actual/360 1 360
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
Wells Fargo Bank, N.A.
as Trustee and Paying Agent
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2007 CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of September 28, 2007 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer, Centerline
Servicing, Inc., as Special Servicer and Wells Fargo Bank, N.A., as Trustee and
as Paying Agent on behalf of the holders of J.P. Morgan Chase Commercial
Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC20 (the "Certificates") in connection with the
transfer by _________________ (the "Seller") to the undersigned (the
"Purchaser") of $_______________ aggregate Certificate Balance of Class ___
Certificates (the "Certificate"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[_] The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act")) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to
bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased by
it for its own account or for one or more accounts (each of which is
an "institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust Fund for any costs incurred by it
in connection with this transfer.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Certificate or a Residual Certificate) to
institutional "accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act or (iii)
(other than with respect to a Residual Certificate) pursuant to any other
exemption from the registration requirements of the Securities Act, subject in
the case of clauses (ii) and (iii) above to (w) the receipt by the Certificate
Registrar of a letter substantially in the form hereof, (x) the receipt by the
Certificate Registrar of an opinion of counsel acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the Securities Act and other applicable
laws and (z) a written undertaking to reimburse the Trust for any costs incurred
by it in connection with the proposed transfer. The Purchaser understands that
the Certificate (and any subsequent Certificate) has not been registered under
the Securities Act, by reason of a specified exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the Purchaser's investment intent (or intent to resell to
only certain investors in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[_] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Paying Agent (or its agent) with respect to distributions to
be made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
[_] (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
[_] (b) by mailing a check or draft to the following address:
______________________________________________________
______________________________________________________
______________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
________________________________________
[The Purchaser]
By:_____________________________________
Name:
Title:
Dated:
-------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is
[__________].
3. That the Transferee of a J.P. Morgan Chase Commercial Mortgage
Securities Trust 2007-CIBC20, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC20, Class [R] [LR] Certificate (the "Class [R] [LR]
Certificate") is not a Disqualified Organization (as defined below) or an agent
thereof (including nominee, middleman or other similar person) (an "Agent"), or
an ERISA Prohibited Holder or a Non-U.S. Person (as defined below). For these
purposes, a "Disqualified Organization" means any of (i) the United States, any
State or political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, any international organization, or any agency
or instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause any of the [Upper-Tier REMIC], [the
Lower-Tier REMIC] to fail to qualify as a REMIC, or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are (or are permitted to be
under the related partnership agreement) owned, directly or indirectly (other
than through a U.S. corporation), through any partnership, trust or other
pass-through entity, by any person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax
liabilities with respect to the Class [R] [LR] Certificate in excess of any cash
flow generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
(as defined below) certifying that it has no actual knowledge that such Person
or entity is a Disqualified Organization, or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person and that it has no reason to know that
such Person or entity does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Transferee agrees to such amendments of the Pooling
and Servicing Agreement, dated September 28, 2007, by and among J.P. Morgan
Chase Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services,
Inc., as Master Servicer, Centerline Servicing Inc., as Special Servicer and
Wells Fargo Bank, N.A., as Trustee and as Paying Agent (the "Pooling and
Servicing Agreement") as may be required to further effectuate the restrictions
on transfer of the Class [R] [LR] Certificate to such a Disqualified
Organization, or an Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated
with respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee
agrees to act as "tax matters person" and to perform the functions of "tax
matters person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and, in such event,
agrees to the irrevocable designation of the Trustee as the Transferee's agent
in performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by
and to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class
[R][LR] Certificate to be attributable to, a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other U.S. person.
11. Check one of the following:
[_] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[_] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
Wells Fargo Bank, N.A.
as Certificate Registrar
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
J.P. Morgan Chase Commercial Mortgage Securities Corp., Series
2007-CIBC20
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC20
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
____________________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
__________[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC20, REQUEST FOR RELEASE
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated September 28, 2007 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, Centerline Servicing Inc., as Special
Servicer and you, as Trustee and Paying Agent, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Master Servicer]
[Special Servicer] hereby certifies that all amounts
received in connection with the Mortgage Loan have been
or will be credited to the Certificate Account pursuant
to the Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER] [SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Wells Fargo Bank, N.A.
as Trustee and Paying Agent
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2007-CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance- Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities
Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates,
Series 2007-CIBC20
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of J.P. Morgan Chase Commercial Mortgage Securities
Trust 2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20, Class __ (the "Certificate") issued pursuant to that certain
Pooling and Servicing Agreement, dated September 28, 2007 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as depositor ("Depositor"), Midland Loan Services, Inc., as
master servicer ("Master Servicer"), Centerline Servicing Inc., as special
servicer ("Special Servicer") and Wells Fargo Bank, N.A., as trustee
("Trustee"), and as paying agent ("Paying Agent"). Capitalized terms used and
not otherwise defined herein have the respective meanings ascribed to such terms
in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a governmental plan (as
defined in Section 3(32) of ERISA) or a church plan (as defined in Section 3(33)
of ERISA) for which no election has been made under Section 410(d) of the Code,
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such a Plan or Plans and the application of
Department of Labor Regulation ss. 2510.3-101), other than an insurance company
using the assets of its "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60) under circumstances whereby the purchase and holding of Offered Private
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of PTCE
95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an Opinion of Counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a "prohibited transaction" within the meaning of
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Paying Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Dealers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent, the
Dealers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
________________________________________
[The Purchaser]
By:_____________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex C to the Prospectus Supplement dated September 25, 2007]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "Wells Fargo Bank, N.A., as Trustee for the registered
holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20" (the
"Assignee"), having an office at 9062 Old Annapolis Road, Columbia, Maryland
21045 1951, Attn: J.P. Morgan Commercial Mortgage Securities Corp., Series
2007-CIBC20, its successors and assigns, all right, title and interest of the
Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By:_____________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
Wells Fargo Bank, N.A.
as Trustee and Paying Agent
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2007-CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20 Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated September 28, 2007 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
Centerline Servicing Inc., as Special Servicer and Wells Fargo Bank, N.A., as
Trustee and as Paying Agent, on behalf of the holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance] [Notional Amount]of Certificates, in fully registered form (each, an
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
Wells Fargo Bank, N.A.
as Certificate Registrar
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Commercial Mortgage
Securities Corp., Series 2007-CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20
Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated September 28, 2007 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
Centerline Servicing Inc., as Special Servicer and Wells Fargo Bank, N.A., as
Trustee and as Paying Agent, on behalf of the holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") to
_________________ (the "Transferee") of $__________________ [Certificate
Balance][Notional Amount] of Certificates, in fully registered form (each, an
"Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20
Capmark Finance Inc.
116 Welsh Road
Horsham, PA 19044
JPMorgan Chase Bank
4 New York Plaza
New York, New York 10004
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the Pooling and Servicing
Agreement, dated September 28, 2007 (the "Pooling and Servicing Agreement"), by
and among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Midland Loan Services, Inc., as Master Servicer ("Master
Servicer"), Centerline Servicing Inc., as special servicer ("Special Servicer")
and Wells Fargo Bank, N.A., as Trustee ("Trustee") and as Paying Agent ("Paying
Agent"). Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is a
Special Servicer] [acquired its Purchase Option from a Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
Master Servicer in exchange for the release of the Mortgage Loan, the related
Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicer with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan [__], together with such other
documents or instruments as the Master Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicer's notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [a Special Servicer] hereby acknowledges
and affirms that it transferred its Purchase Option to the Option Holder
identified above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
Wells Fargo Bank, N.A.
as Trustee and Paying Agent
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2007-CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20 Class [__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated September 28, 2007 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, Centerline Servicing Inc., as Special
Servicer and Wells Fargo Bank, N.A., as Trustee and as Paying Agent, on behalf
of the holders of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------
* Select appropriate depository.
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
Controlling Class Certificateholder's Reports Checklist
Information Format Frequency
----------- ------ ---------
Property Operating Statement (Master Actual PDF/TIF As received/Quarterly
Servicer)*
Property Rent Roll (Master Servicer)* Actual PDF/TIF As received/Quarterly
Other Financials as required by loan Actual PDF/TIF As received
documents (Master Servicer)
Property Inspection (Master Servicer)* Actual PDF/TIF As received/Quarterly
Payments Received After Determination Monthly Excel P&I Advance Date
Date Report (Master Servicer)(1)
Mortgage Loans Delinquent Report (Master Monthly Excel 30th of each month
Servicer)(2)
Interest on Advance Reconciliation Monthly Excel Distribution Date
(Master Servicer)
CMSA Setup File (Issuer/Master Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Property File (Master Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Loan Periodic Update File (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)
CMSA Financial File (Master Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
Distribution Statement (Paying Agent) Monthly Excel/PDF Monthly/Distribution Date
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Supplemental Reports (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
(Master Servicer)*
NOI Adjustment Worksheet (Master CMSA IRP Access/Excel Monthly/Distribution Date
Servicer)*
Documentation Exceptions Report (Trustee) Quarterly Access/Excel Monthly/Distribution Date
* Submit electronically with ARCap Naming Convention.
Footnotes:
(1) On the P&I Advance Date following the Determination Date for the related
Bond Certificateholder Distribution, a list of all mortgage loans which
are delinquent as to the applicable Distribution Period on the P&I Advance
Date. This list should represent all delinquent loans that required a P&I
Advance be made.
(2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in the Master Servicer's opinion, for the mortgage loans
continued delinquency, along with an explanation of the Master Servicer's
attempts to cure.
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2007-CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20,
Class [__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated September 28, 2007 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, Centerline Servicing Inc., as Special
Servicer and Wells Fargo Bank, N.A., as Trustee and as Paying Agent, on behalf
of the holders of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE OF
REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
Wells Fargo Bank, N.A.
As Trustee and Paying Agent
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20, Class[__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated September 28, 2007 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, Centerline Servicing Inc., as Special
Servicer and Wells Fargo Bank, N.A., as Trustee and as Paying Agent, on behalf
of the holders of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer, the Special Servicer and Initial Purchasers of the offering
of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------
* Select appropriate depository.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
Wells Fargo Bank, N.A.
As Certificate Registrar.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2007-CIBC20
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Trust
2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20,
Class_[__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated September 28, 2007 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
Centerline Servicing Inc., as Special Servicer and Wells Fargo Bank, N.A., as
Trustee and as Paying Agent, on behalf of the holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20 in connection with the transfer by
_______________ of a beneficial interest of $___________ [Certificate Balance]
[Notional Amount] in a Book-Entry Certificate during the Restricted Period to
the undersigned (the "Transferee"). The Transferee desires to beneficially own
such transferred interest in the form of the Regulation S Book-Entry
Certificate. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Master Servicer and the Special
Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT Q
INITIAL COMPANION HOLDERS
EXHIBIT R
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street, 41st Floor
New York, New York 10041
Attn: Commercial Mortgage Surveillance Group
From: Midland Loan Services, Inc., in its capacity as Master
Servicer (the "Master Servicer") under the Pooling and
Servicing Agreement dated as of September 28, 2007 (the
"Pooling and Servicing Agreement"), among the Master Servicer,
Wells Fargo Bank, N.A., as Trustee and Paying Agent, and
others.
Date: _________, 20___
Re: J.P. Morgan Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series
2007-CIBC20
Mortgage Loan (the "Mortgage Loan") identified by loan number
_____ on the Mortgage Loan Schedule attached to the Pooling
and Servicing Agreement and heretofore secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule
by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied in
all material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by [S&P], (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in [Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria"))] as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the [S&P Criteria]) in the name of the Defeasance Obligor, which
account is maintained as a securities account by a securities intermediary
and has been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance
(i) grant control of the pledged securities account to Trustee, (ii)
require the securities intermediary to make the scheduled payments on the
Mortgage Loan from the proceeds of the defeasance collateral directly to
the Master Servicer's collection account in the amounts and on the dates
specified in the Mortgage Loan documents or, in a partial defeasance, the
portion of such scheduled payments attributed to the allocated loan amount
for the real property defeased, increased by any defeasance premium
specified in the Mortgage Loan documents (the "Scheduled Payments"), (iii)
permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the [S&P Criteria]), (iv) permit
release of surplus defeasance collateral and earnings on reinvestment from
the pledged securities account only after the Mortgage Loan has been paid
in full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a
firm of independent certified public accountants, who were approved by the
Master Servicer in accordance with the Servicing Standard stating that (i)
revenues from the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x)[The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
MIDLAND LOAN SERVICES, INC.
By: __________________________________
Name:
Title:
EXHIBIT S
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) - J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2007-CIBC20
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20
Pursuant to the Pooling and Servicing Agreement, dated as of
September 28, 2007 (the "Pooling and Servicing Agreement"), by and among J.P.
Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland Loan
Services, Inc., as Master Servicer, Centerline Servicing Inc., as Special
Servicer and Wells Fargo Bank, N.A., as Trustee and as Paying Agent with respect
to J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Paying Agent's Internet Website pursuant to Section 4.02
of the Pooling Servicing Agreement.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives in any manner
whatsoever, in whole or in part; provided that the undersigned may provide all
or any part of the Information to any other person or entity that is
contemplating the purchase of any Certificate, but only if such person or entity
confirms in writing such prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any part of
the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Pooling Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER] [PROSPECTIVE
PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT T
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement, dated as of September 28, 2007 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer, Centerline
Servicing Inc., as Special Servicer and Wells Fargo Bank, N.A., as Trustee and
as Paying Agent, the undersigned, as Trustee, hereby certifies that, except as
noted on the attached Trustee Exception Report, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or for
which a Liquidation Event has occurred) the Trustee has, subject to Section
2.02(e) of the Pooling and Servicing Agreement, reviewed the documents delivered
to it pursuant to Section 2.01 of the Pooling and Servicing Agreement and has
determined that (i) all documents specified in clauses (i) through (v), (ix)
through (xii) and (xvi) (or, with respect to clause (xvi), a copy of such letter
of credit and the required officer's certificate), if any, of the definition of
"Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
WELLS FARGO BANK, N.A.,
as Trustee
By:_____________________________
Name:
Title:
TRUSTEE EXCEPTION REPORT
Collateral ID Property Name Pool ID Collgroup Investor ID Loan Amount DocType Exception
42007CIBC20 Sawgrass Mills Mall 2007CIBC20 JPMC091707 JPMCB 139,411,764.71 ALNV 01
42007CIBC20 Sawgrass Mills Mall 2007CIBC20 JPMC091707 JPMCB 139,411,764.71 ALNV 01
42007CIBC20 Sawgrass Mills Mall 2007CIBC20 JPMC091707 JPMCB 139,411,764.71 ALNV 01
12007CIBC20 Gurnee Mills 2007CIBC20 JPMC091707 JPMCB 246,000,000.00 NOTE 01
522007CIBC20 Wright State Student Apartments 2007CIBC20 JPMC091707 JPMCB 13,000,000.00 NOTE 10
82007CIBC20 65 Corporate Woods Drive 2007CIBC20 JPMC091707 JPMCB 14,050,000.00 TPOL 01
92007CIBC20 550 North Continental 2007CIBC20 JPMC091707 JPMCB 12,741,000.00 TPOL 01
322007CIBC20 Warner Center Business Park - CA 2007CIBC20 CIBC071007 CIBC 22,750,000.00 TPOL 01
552007CIBC20 Infinity Corporate Centre 2007CIBC20 CIBC080207 CIBC 12,600,000.00 TPOL 01
812007CIBC20 Fairfield Inn - Fayetteville, NC 2007CIBC20 CIBC071107 CIBC 8,500,000.00 TPOL 01
962007CIBC20 Hampton Inn & Suites - Albuquerque, NM 2007CIBC20 CIBC052407 CIBC 7,000,000.00 TPOL 01
1412007CIBC20 Briarwood Shopping Center 2007CIBC20 CIBC070507 CIBC 2,450,000.00 TPOL 01
Collateral ID Exception Description
42007CIBC20 MISSING
42007CIBC20 MISSING
42007CIBC20 MISSING
12007CIBC20 MISSING
522007CIBC20 INTEREST RATE DOES NOT AGREE WITH SCHEDULE
82007CIBC20 MISSING
92007CIBC20 MISSING
322007CIBC20 MISSING
552007CIBC20 MISSING
812007CIBC20 MISSING
962007CIBC20 MISSING
1412007CIBC20 MISSING
Collateral ID Notation
42007CIBC20 JPMC TO WELLS ( NOTE A-4 PHASE I $106,242,917.63)
42007CIBC20 JPMC TO WELLS ( NOTE A-4 PHASE II $11,309,082.36)
42007CIBC20 JPMC TO WELLS ( NOTE A-4 PHASE III $21,859,764.71)
12007CIBC20 @$125,000,000; (ORIGINAL NOTE BEING SPLIT; WILL RECEIVE NEW AMENDED NOTE DURING CLOSE)
522007CIBC20 BLANK SPACE LEFT FOR INTEREST RATE
82007CIBC20
92007CIBC20
322007CIBC20 NO COMMITMENT OR PRO FORMA RECEIVED
552007CIBC20 NO COMMITMENT OR PRO FORMA RECEIVED
812007CIBC20 NO COMMITMENT OR PRO FORMA RECEIVED
962007CIBC20 NO COMMITMENT OR PRO FORMA RECEIVED
1412007CIBC20 NO COMMITMENT OR PRO FORMA RECEIVED
Collateral ID Comments
42007CIBC20 Original Being Delivered This Morning
42007CIBC20 Original Being Delivered This Morning
42007CIBC20 Original Being Delivered This Morning
12007CIBC20
522007CIBC20
82007CIBC20
92007CIBC20
322007CIBC20 PDF Being Delivered this Morning
552007CIBC20 PDF Being Delivered this Morning
812007CIBC20 PDF Being Delivered this Morning
962007CIBC20 PDF Being Delivered this Morning
1412007CIBC20 PDF Being Delivered this Morning
SCHEDULE A
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Centerline Servicing Inc.,
5221 N. O'Connor Blvd., Suite 600
Irving, Texas 75309
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
55 Water Street, 41st Floor
New York, New York 10041
Fitch, Inc.
One State Street Plaza
New York, New York 10004
JPMorgan Chase Bank, National Association
270 Park Avenue, 10th Floor
New York, New York 10017
Midland Loan Services, Inc.
10851 Mastin, Suite 700
Overland Park, Kansas 66210
EXHIBIT U-1
[FORM OF NOTICE RELATING TO THE SAWGRASS MILLS MALL MORTGAGE LOAN]
[Date]
VIA FACSIMILE
Attention: [__________________]
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20
Dear [_____________]:
[ ] is the master servicer (the "Sawgrass Mills Mall
Master Servicer") for the Sawgrass Mills Mall Whole Loan, as such term is
defined under the Pooling and Servicing Agreement, dated September 28, 2007 (the
"2007-CIBC20 Pooling Agreement") by and among J.P. Morgan Chase Commercial
Mortgage Securities Corp., as depositor, Midland Loan Services, Inc. (the
"Sawgrass Mills Mall Mortgage Loan Master Servicer"), Centerline Servicing Inc.,
as special servicer, and Wells Fargo Bank N.A., as trustee (in such capacity,
the "Trustee") and as paying agent. The Trustee hereby directs the Sawgrass
Mills Mall Master Servicer, as follows:
The Sawgrass Mills Mall Master Servicer shall remit to the Sawgrass
Mills Mall Mortgage Loan Master Servicer all amounts payable to, and forward,
deliver or otherwise make available, as the case may be, to the Sawgrass Mills
Mall Mortgage Loan Master Servicer all reports, statements, documents,
communications, and other information that are to be forwarded, delivered or
otherwise made available to, the holder of the Sawgrass Mills Mall Mortgage Loan
(as such term is defined in the 2007-CIBC20 Pooling Agreement) under the
Sawgrass Mills Mall Intercreditor Agreement (as defined in the 2007-CIBC20
Pooling Agreement).
Thank you for your attention to this matter.
WELLS FARGO BANK, N.A., as Trustee for
the Holders of the J.P. Morgan Chase
Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage
Pass-Through Certificates, Series
2007-CIBC20.
Date: _________________________
WELLS FARGO BANK, N.A.
By: ___________________________
[Name]
[Title]
EXHIBIT U-2
[FORM OF NOTICE RELATING TO USFS INDUSTRIAL DISTRIBUTION PORTFOLIO
MORTGAGE LOAN]
[Date]
VIA FACSIMILE
Attention: [__________________]
Re: J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20,
Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20
Dear [_____________]:
[ ] is the master servicer (the "USFS Industrial
Distribution Portfolio Master Servicer") for the USFS Industrial Distribution
Portfolio Whole Loan, as such term is defined under the Pooling and Servicing
Agreement, dated September 28, 2007 (the "2007-CIBC20 Pooling Agreement") by and
among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc. (the "USFS Industrial Distribution Portfolio
Mortgage Loan Master Servicer"), Centerline Servicing Inc., as special servicer,
and Wells Fargo Bank, N.A., as trustee (in such capacity, the "Trustee") and as
paying agent. The Trustee hereby directs the USFS Industrial Distribution
Portfolio Master Servicer, as follows:
The USFS Industrial Distribution Portfolio Master Servicer shall
remit to the USFS Industrial Distribution Portfolio Mortgage Loan Master
Servicer all amounts payable to, and forward, deliver or otherwise make
available, as the case may be, to the USFS Industrial Distribution Portfolio
Mortgage Loan Master Servicer all reports, statements, documents,
communications, and other information that are to be forwarded, delivered or
otherwise made available to, the holder of the USFS Industrial Distribution
Portfolio Mortgage Loan (as such term is defined in the 2007-CIBC20 Pooling
Agreement) under the USFS Industrial Distribution Portfolio Intercreditor
Agreement (as defined in the 2007-CIBC20 Pooling Agreement).
Thank you for your attention to this matter.
WELLS FARGO BANK, N.A., as Trustee
for the Holders of the J.P. Morgan
Chase Commercial Mortgage Securities
Trust 2007-CIBC20, Commercial
Mortgage Pass-Through Certificates,
Series 2007-CIBC20
Date: _________________________
WELLS FARGO BANK, N.A.
By: ___________________________
[Name]
[Title]
EXHIBIT V
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC20 (the "Trust")
I, [identifying the certifying individual], the President and
Chief Executive Officer of J.P. Morgan Chase Commercial Mortgage Securities
Corp., the depositor into the above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
10-D required to be filed in respect of period covered by this annual
report on Form 10-K, of the Trust (the "Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s) required in
this report under Item 1123 of Regulation AB, and except as disclosed in
the Exchange Act Periodic Reports, the master servicer and the special
servicer have fulfilled their obligations under the pooling and servicing
agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing criteria
and their related attestation reports on assessment of compliance with
servicing criteria required to be included in this report in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this
report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Midland Loan Services,
Inc., Centerline Servicing Inc. and Wells Fargo Bank, N.A..
Date: _________________________
______________________________________
President and Chief Executive Officer
J.P. Morgan Chase Commercial Mortgage
Securities Corp.
EXHIBIT W-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY TRUSTEE
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC20 (the "Trust")
I, [identifying the certifying individual], on behalf of Wells
Fargo Bank, N.A., as trustee and paying agent, certify to J.P. Morgan Chase
Commercial Mortgage Securities Corp. and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 20__,
and all reports on Form 10-D required to be filed in respect of periods
covered by that annual report on Form 10-K, of the Trust (the "Exchange
Act Periodic Reports");
2. Based on my knowledge, the distribution information in the Exchange Act
Periodic Reports, taken as a whole, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by that
report on Form 10-K;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided to the paying agent by the master
servicer and the special servicer under the pooling and servicing
agreement for inclusion in the Exchange Act Periodic Reports is included
in such reports;
4. I am responsible for reviewing the activities performed by the Trustee and
based on my knowledge and the compliance reviews conducted in preparing
the Trustee compliance statements required for inclusion on Form 10-K
pursuant to Item 1123 of Regulation AB, and except as disclosed on any
Form 10-D or 10-K, the Trustee has fulfilled its obligations in all
material respects under the Pooling and Servicing Agreement; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Trustee in accordance with
Section 11.10 and Section 11.11 of the pooling and servicing agreement
discloses, with respect to the Trustee, all material instances of
noncompliance with the Relevant Servicing Criteria and such assessment
of compliance with servicing criteria is fairly stated in all material
respects.
Date:__________________________________
WELLS FARGO BANK, N.A.
By:____________________________________
[Name]
[Title]
EXHIBIT W-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY MASTER SERVICER
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC20 (the "Certificates")
I, [identify the certifying individual], on behalf of Midland Loan
Services, Inc., certify to J.P. Morgan Chase Commercial Mortgage Securities
Corp. and their officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification in delivering the
Certification required by the pooling and servicing agreement relating to the
Certificates (capitalized terms used herein without definition shall have the
meanings assigned to such terms in the pooling and servicing agreement), that:
1. Based on my knowledge, the servicing information in the servicing
reports relating to the trust fund delivered by Midland Loan Services,
Inc. to the Trustee covering the fiscal year 20__, taken as a whole,
does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not
misleading with respect to the period covered by these servicing
reports;
2. Based on my knowledge, the servicing information required to be provided
to the Trustee by the Master Servicer under the pooling and servicing
agreement for inclusion in the reports to be filed by the Trustee is
included in the servicing reports delivered by the Master Servicer to the
Trustee;
3. I am responsible for reviewing the activities performed by the Master
Servicer under the pooling and servicing agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and
servicing agreement with respect to the Master Servicer, and except as
disclosed in such compliance statement delivered by the Master Servicer
under Section 11.09 of the pooling and servicing agreement, the Master
Servicer has fulfilled its obligations under the pooling and servicing
agreement in all material respects in the year to which such review
applies; and
4. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered in accordance with Section 11.10 and
Section 11.11 of the pooling and servicing agreement discloses all
material instances of noncompliance with the Relevant Servicing Criteria
and such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:__________________________________
MIDLAND LOAN SERVICES, INC.
By:____________________________________
[Name]
[Title]
EXHIBIT W-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC20 (the "Certificates")
I, [identify the certifying individual], on behalf of Centerline
Servicing Inc., certify to J.P. Morgan Chase Commercial Mortgage Securities
Corp. and their officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification in delivering the
Certification required by the pooling and servicing agreement relating to the
Certificates (capitalized terms used herein without definition shall have the
meanings assigned to such terms in the pooling and servicing agreement), that:
1. I have reviewed the servicing reports relating to the trust fund delivered
by the Special Servicer to the Master Servicer covering the fiscal year
20__;
2. Based on my knowledge, the servicing information in the servicing reports,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading with respect to the period covered by these servicing reports;
3. Based on my knowledge, the servicing information required to be provided
to the Master Servicer by the Special Servicer under the pooling and
servicing agreement for inclusion in the reports to be filed by the
Trustee is included in the servicing reports delivered by the Special
Servicer to the Master Servicer;
4. I am responsible for reviewing the activities performed by the Special
Servicer under the pooling and servicing agreement and based upon my
knowledge and the compliance review conducted in preparing the servicer
compliance statement required under Section 11.09 of the pooling and
servicing agreement with respect to the Special Servicer, and except as
disclosed in such compliance statement delivered by the Special
Servicer under Section 11.09 of the pooling and servicing agreement,
the Special Servicer has fulfilled its obligations under the pooling
and servicing agreement in all material respects in the year to which
such review applies; and
5. The report on assessment of compliance with servicing criteria and the
related attestation report on assessment of compliance with servicing
criteria required to be delivered by the Special Servicer in accordance
with Section 11.10 and Section 11.11 of the pooling and servicing
agreement discloses, with respect to the Special Servicer, all material
instances of noncompliance with the Relevant Servicing Criteria and
such assessment of compliance with servicing criteria is fairly stated
in all material respects.
Date:__________________________________
CENTERLINE SERVICING INC.
By:____________________________________
[Name]
[Title]
EXHIBIT X
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the referenced party shall
address, at a minimum, the criteria identified below as "Relevant Servicing
Criteria":
-----------------------------------------------------------------------------------------------------------------------------
RELEVANT
SERVICING
SERVICING CRITERIA CRITERIA
-----------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance Paying Agent
or other triggers and events of default in accordance with the Master Servicer
transaction agreements. Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third Paying Agent
parties, policies and procedures are instituted to monitor the Master Servicer
third party's performance and compliance with such servicing Special Servicer
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a N/A
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the Master Servicer
party participating in the servicing function throughout the Special Servicer
reporting period in the amount of coverage required by and Custodian
otherwise in accordance with the terms of the transaction
agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate Paying Agent
custodial bank accounts and related bank clearing accounts no more Master Servicer
than two business days following receipt, or such other number of Special Servicer
days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to Paying Agent
an investor are made only by authorized personnel. Master Servicer
Special Servicer
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows Master Servicer
or distributions, and any interest or other fees charged for such Special Servicer
advances, are made, reviewed and approved as specified in the Trustee
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Paying Agent
accounts or accounts established as a form of Master Servicer
overcollateralization, are separately maintained (e.g., with Special Servicer
respect to commingling of cash) as set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Paying Agent
depository institution as set forth in the transaction agreements. Master Servicer
For purposes of this criterion, "federally insured depository Special Servicer
institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
Paying Agent
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized Master Servicer
access. Special Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Paying Agent
asset-backed securities related bank accounts, including custodial Master Servicer
accounts and related bank clearing accounts. These reconciliations Special Servicer
are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items.
These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Paying Agent
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Reporting Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance Paying Agent
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business Paying Agent
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with Paying Agent
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required Custodian
by the transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by Custodian
the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are Custodian
made, reviewed and approved in accordance with any conditions or Trustee
requirements in the transaction agreements. Master Servicer
Special Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in Master Servicer
accordance with the related mortgage loan documents are posted to Special Servicer
the Servicer's obligor records maintained no more than two business
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage
loan documents.
1122(d)(4)(v) The Reporting Servicer's records regarding the mortgage loans agree Master Servicer
with the Reporting Servicer's records with respect to an obligor's
unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's Master Servicer
mortgage loans (e.g., loan modifications or re-agings) are made, Special Servicer
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, Special Servicer
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the Master Servicer
period a mortgage loan is delinquent in accordance with the Special Servicer
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans Master Servicer
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow Master Servicer
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements;
(B) interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance Master Servicer
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be Master Servicer
made on behalf of an obligor are paid from the servicer's funds and
not charged to the obligor, unless the late payment was due to the
obligor's error or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two Master Servicer
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction
agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are Master Servicer
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in N/A
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------
[NAME OF REPORTING SERVICER]
Date:
--------------------------
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
EXHIBIT Y
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------
Item 1: Distribution and Pool Trustee
Performance Information Depositor
Any information required by Item 1121
of Regulation AB which is NOT included
on the Monthly Statement
Item 2: Legal Proceedings (i) All parties to the Pooling and
Servicing Agreement (as to
per Item 1117 of Regulation AB (to the themselves), (ii) as to litigation to
extent material to Certificateholders) which they respectively have
knowledge, the Trustee, the Master
Servicer and the Special Servicer as
to the issuing entity (in the case of
the Master Servicer and the Special
Servicer, to be reported by the party
controlling such litigation pursuant
to Section 3.34 of the Pooling and
Servicing Agreement), (iii) the
Depositor as to the sponsors, any
1110(b) originator, and any
1100(d)(1) party
Item 3: Sale of Securities and Use of Depositor
Proceeds
Item 4: Defaults Upon Senior Securities Trustee
Item 5: Submission of Matters to a Trustee
Vote of Security Holders
Item 6: Significant Obligors of Pool Depositor
Assets
Item 7: Significant Enhancement Depositor
Provider Information
Item 8: Other Information Any party responsible for disclosure
items on Form 8-K
Item 9: Exhibits Trustee
Depositor
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EXHIBIT Z
ADDITIONAL FORM 10-K DISCLOSURE
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Item on Form 10-K Party Responsible
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Item 1B: Unresolved Staff Comments Depositor
Item 9B: Other Information Any party responsible for disclosure
items on Form 8-K
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
Additional Item: (i) All parties to the Pooling and
Servicing Agreement (as to
Disclosure per Item 1117 of Regulation themselves), (ii) as to litigation to
AB (to the extent material to which they respectively have
Certificateholders) knowledge, the Trustee, the Master
Servicer and the Special Servicer as
to the issuing entity (in the case of
the Master Servicer and the Special
Servicer, to be reported by the party
controlling such litigation pursuant
to Section 3.34 of the Pooling and
Servicing Agreement), (iii) the
Depositor as to the sponsor, any
1110(b) originator and any
1100(d)(1) party
Additional Item: (i) All parties to the Pooling and
Disclosure per Item 1119 of Regulation Servicing Agreement as to themselves,
AB (ii) the Depositor as to the sponsor,
originator, significant obligor,
enhancement or support provider
Additional Item: Depositor
Disclosure per Item 1112(b) of
Regulation AB
Additional Item: Depositor
Disclosure per Items 1114(b)(2) and
1115(b) of Regulation AB
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EXHIBIT AA
FORM 8-K DISCLOSURE INFORMATION
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Item on Form 8-K Party Responsible
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Item 1.01: Entry into a Material All parties (only as to agreements
Definitive Agreement such entity is a party to or entered
into on behalf of the Trust Fund)
Item 1.02: Termination of a Material All parties (only as to agreements
Definitive Agreement such entity is a party to or entered
into on behalf of the Trust Fund)
Item 1.03: Bankruptcy or Receivership Depositor
Item 2.04: Triggering Events that Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
Item 3.03: Material Modification to Trustee
Rights of Security Holders
Item 5.03: Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
Item 6.01: ABS Informational and Depositor
Computational Material
Item 6.02: Change of Master Servicer, Master Servicer
Special Servicer or Trustee Special Servicer
Trustee
Depositor
Item 6.03: Change in Credit Depositor
Enhancement or External Support Trustee
Item 6.04: Failure to Make a Required Trustee
Distribution
Item 6.05: Securities Act Updating Depositor
Disclosure
Item 7.01: Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
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EXHIBIT BB
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO (410) 715-2380 AND VIA EMAIL TO
cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
Wells Fargo Bank, N.A., as Trustee
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)- J.P. Morgan Chase Commercial
Mortgage Securities Trust 2007-CIBC20, Commercial Mortgage Pass-Through
Certificates, Series 2007 CIBC20--SEC REPORT PROCESSING
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
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 September 28, 2007, among Midland Loan Services, Inc., as
master servicer, Centerline Servicing Inc., as special servicer and Wells Fargo
Bank, N.A., as trustee and as paying agent, 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 CC
SERVICING AND SUBSERVICING AGREEMENTS
The Mortgage Loans shall be serviced by the Master Servicer. Certain of
the Mortgage Loans are subject to subservicing agreements as set forth below.
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Property Name Subservicer Name
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EXHIBIT DD
SERVICING FUNCTION PARTICIPANTS
With respect to Midland Loan Services, Inc., master servicer, none.
With respect to Centerline Servicing Inc., special servicer, none.
With respect to Wells Fargo Bank, N.A., trustee and paying agent, none.
EXHIBIT EE
FORM OF ANNUAL COMPLIANCE STATEMENT
CERTIFICATION
J.P. Morgan Chase Commercial Mortgage Securities Trust 2007-CIBC20
Commercial Mortgage Pass-Through Certificates
Series 2007-CIBC20 (the "Trust")
I, [identifying the certifying individual], on behalf of [Midland
Loan Services, Inc.., as master servicer][ Centerline Servicing Inc., as
special servicer][ Wells Fargo Bank, N.A., as trustee and paying agent] (the
"Certifying Servicer"), certify to J.P. Morgan Chase Commercial Mortgage
Securities Corp. and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the Certifying Servicer's activities during the preceding
calendar year or portion thereof and the Certifying Servicer's performance
under the Pooling and Servicing Agreement; and
2. To the best of my knowledge, based on my review, the Certifying Servicer
has fulfilled all of its obligations under the Pooling and Servicing
Agreement in all material respects throughout such year or portion
thereof. [To my knowledge, the Certifying Servicer has failed to fulfill
the following obligations under the Pooling and Servicing Agreement:
[SPECIFY EACH SUCH FAILURE AND THE NATURE AND STATUS THEREOF]].
Date:__________________________________
[MIDLAND LOAN SERVICES,
INC.][CENTERLINE SERVICING
INC.][WELLS FARGO BANK, N.A.]
By:__________________________________
[Name]
[Title]
EXHIBIT FF
FORM OF REPORT ON ASSESSMENT OF COMPLIANCE WITH SERVICING CRITERIA
1. [Name of Reporting Servicer] (the "Reporting Servicer") is responsible
for assessing compliance with the servicing criteria applicable to it
under paragraph (d) of Item 1122 of Regulation AB, as of and for the
12-month period ending [December 31, 2007] (the "Reporting Period"), as
set forth in Exhibit X to the Pooling and Servicing Agreement. The
transactions covered by this report include asset-backed securities
transactions [for which the Reporting Servicer acted as [a master
servicer, special servicer, trustee, paying agent, servicer]] involving
commercial mortgage loans [other than __________________(1)] (the
"Platform");
2. [The Reporting Servicer has engaged certain vendors (the "Vendors") to
perform specific, limited or scripted activities, and the Reporting
Servicer elects to take responsibility for assessing compliance with the
servicing criteria or portion of the servicing criteria applicable to such
Vendors' activities as set forth on Schedule A;]
3. The Reporting Servicer used the criteria set forth in paragraph (d) of
Item 1122 of Regulation AB to assess the compliance with the applicable
servicing criteria;
4. The Reporting Servicer has complied, in all material respects, with the
applicable servicing criteria as of [December 31, 2007] and for the
Reporting Period with respect to the Platform taken as a whole[, except as
described on Schedule B hereto];
5. [The Reporting Servicer has not identified and is not aware of any
material instance of noncompliance by the Vendors with the applicable
servicing criteria as of [December 31, 2007] and for the Reporting Period
with respect to the Platform taken as a whole[, except as described on
Schedule B hereto];]
6. [The Reporting Servicer has not identified any material deficiency in its
policies and procedures to monitor the compliance by the Vendors with the
applicable servicing criteria as of [December 31, 2007] and for the
Reporting Period with respect to the Platform taken as a whole[, except as
described on Schedule B hereto]; and]
7. [_____________], a registered public accounting firm, has issued an
attestation report on the Reporting Servicer's assessment of compliance
with the applicable servicing criteria for the Reporting Period.
[Date of Certification]
----------
(1) Describe any permissible exclusions, including those permitted under
telephone interpretation 17.04 (i.e. transactions registered prior to compliance
with Regulation AB, transactions involving an offer and sale of asset-backed
securities that were not required to be issued), if applicable.
[NAME OF REPORTING SERVICER]
By:___________________________________
Name:
Title:
SCHEDULE A
LIST OF VENDORS AND APPLICABLE SERVICING CRITERIA
SCHEDULE B*
8. [Describe material instances of noncompliance by the Reporting Servicer.]
9. [Describe any remediation efforts (optional).]
10. [Describe material instances of noncompliance by Vendors identified by the
Reporting Servicer.]
11. [Describe any remediation efforts (optional).]
12. [Describe material deficiencies in the Reporting Servicer's policies and
procedures to monitor Vendors.]
13. [Describe any remediation efforts (optional).]
*Accountants' attestation will cover only paragraphs 1, 3 and 4 or,
alternatively, will exclude paragraphs 2 and 5.
EXHIBIT GG
SWAP CONTRACT RELATED TO THE CLASS A-MFL CERTIFICATES
EXHIBIT 10.3
(Multicurrency -- Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of September 28, 2007
J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES TRUST
JPMORGAN CHASE BANK, N.A. and 2007-CIBC20
---------------------------------- ---------------------------------
have entered and/or anticipate entering into one or more transactions (each, a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each, a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in
this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five
Local Business Days prior to the scheduled date for the payment or
delivery to which such change applies unless such other party gives timely
notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of
determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will
equal the full amount Y would have received had no such
deduction or withholding been required. However, X will not be
required to pay any additional amount to Y to the extent that
it would not be required to be paid but for:
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y
pursuant to Section 3(f) to be accurate and
true unless such failure would not have
occurred but for (I) any action taken by a
taxing authority, or brought in a court of
competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless
of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a
Change in Tax Law.
(ii) Liability. If:
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to
make any deduction or withholding in respect of which X would
not be required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or
effective designation of an Early Termination Date in respect of
the relevant Transaction, a party that defaults in the
performance of any payment obligation will, to the extent
permitted by law and subject to Section 6(c), be required to pay
interest (before as well as after judgment) on the overdue amount
to the other party on demand in the same currency as such overdue
amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the
Default Rate. Such interest will be calculated on the basis of
daily compounding and the actual number of days elapsed. If,
prior to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be
settled by delivery, it will compensate the other party on demand
if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:
(a) Basic Representations.
(i) Status. It is duly organized and validly existing under the laws of
the jurisdiction of its organization or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and any obligations it
has under any Credit Support Document to which it is a party and has
taken all necessary action to authorize such execution, delivery and
performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any
provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of
its assets or any contractual restriction binding on or affecting it
or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party have been obtained
and are in full force and effect and all conditions of any such
consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement
and any Credit Support Document to which it is a party
constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms
(subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors'
rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or
at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur
as a result of its entering into or performing its obligations under this
Agreement or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit
or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is
likely to affect the legality, validity or enforceability against
it of this Agreement or any Credit Support Document to which it
is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as of
the date of the information, true, accurate and complete in every material
respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and
true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and
true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a
payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account of
any Tax or with such deduction or withholding at a reduced rate (so
long as the completion, execution or submission of such form or
document would not materially prejudice the legal or commercial
position of the party in receipt of such demand), with any such form
or document to be accurate and completed in a manner reasonably
satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorizations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority
that are required to be obtained by it with respect to this Agreement or
any Credit Support Document to which it is a party and will use all
reasonable efforts to obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of
such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated, organized,
managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the
other party against any Stamp Tax levied or imposed upon the other party
or in respect of the other party's execution or performance of this
Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp Tax
Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event
of default (an "Event of Default") with respect to such party:
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i)
or 2(e) required to be made by it if such failure is not remedied on
or before the third Local Business Day after notice of such failure
is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any
payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied
with or performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day after
notice of such failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to
be complied with or performed by it in accordance with any
Credit Support Document if such failure is continuing after
any applicable grace period has elapsed;
(2) The expiration or termination of such Credit Support Document
or the failing or ceasing of such Credit Support Document to
be in full force and effect for the purpose of this Agreement
(in either case other than in accordance with its terms) prior
to the satisfaction of all obligations of such party under
each Transaction to which such Credit Support Document relates
without the written consent of the other party; or
(3) The party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been
made or repeated by the party or any Credit Support Provider of such
party in this Agreement or any Credit Support Document proves to
have been incorrect or misleading in any material respect when made
or repeated or deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party (1) defaults under a Specified Transaction and, after giving
effect to any applicable notice requirement or grace period, there
occurs a liquidation of, an acceleration of obligations under, or an
early termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last payment,
delivery or exchange date of, or any payment on early termination
of, a Specified Transaction (or such default continues for at least
three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims,
repudiates or rejects, in whole or in part, a Specified Transaction
(or such action is taken by any person or entity appointed or
empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of
such party or any applicable Specified Entity of such party under
one or more agreements or instruments relating to Specified
Indebtedness of any of them (individually or collectively) in an
aggregate amount of not less than the applicable Threshold Amount
(as specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being
declared, due and payable under such agreements or instruments,
before it would otherwise have been due and payable, or (2) a
default by such party, such Credit Support Provider or such
Specified Entity (individually or collectively) in making one or
more payments on the due date thereof in an aggregate amount of not
less than the applicable Threshold Amount under such agreements or
instruments (after giving effect to any applicable notice
requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation, or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or
into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger
or transfer:
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support
Provider under this Agreement or any Credit Support Document
to which it or its predecessor was a party by operation of law
or pursuant to an agreement reasonably satisfactory to the
other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an
Illegality if the event is specified in (i) below, a Tax Event if the
event is specified in (ii) below or a Tax Event Upon Merger if the event
is specified in (iii) below, and, if specified to be applicable, a Credit
Event Upon Merger if the event is specified pursuant to (iv) below or an
Additional Termination Event if the event is specified pursuant to (v)
below:
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to
the promulgation of, or any change in, the interpretation by any
court, tribunal or regulatory authority with competent jurisdiction
of any applicable law after such date, it becomes unlawful (other
than as a result of a breach by the party of Section 4(b)) for such
party (which will be the Affected Party):
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party
(or such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date
on which a Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to this
Agreement) or (y) a Change in Tax Law, the party (which will be the
Affected Party) will, or there is a substantial likelihood that it
will, on the next succeeding Scheduled Payment Date (1) be required
to pay to the other party an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount is required to be deducted or withheld
for or on account of a Tax (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is required
to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay
an additional amount in respect of an .Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section
2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an
amount has been deducted or withheld for or on account of any
Indemnifiable Tax in respect of which the other party is not
required to pay an additional amount (other than by reason of
Section 2(d)(i)(4)(A) or (B)), in either case as a result of a party
consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity
(which will be the Affected Party) where such action does not
constitute an event described in Section 5(a)(viii);
(iv) Credit Event upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any
Credit Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and
such action does not constitute an event described in Section
5(a)(viii) but the creditworthiness of the resulting, surviving or
transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be,
immediately prior to such action (and, in such event, X or its
successor or transferee, as appropriate, will be the Affected
Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute
an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and
is then continuing, the other party (the "Non-defaulting Party") may, by
not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
outstanding Transactions. If, however, "Automatic Early Termination" is
specified in the Schedule as applying to a party, then an Early
Termination Date in respect of all outstanding Transactions will occur
immediately upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent
analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(4) or, to the extent analogous
thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(l) or a Tax Event occurs and there is only one
Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as a
condition to its right to designate an Early Termination Date under
Section 6(b)(iv), use all reasonable efforts (which will not require
such party to incur a loss, excluding immaterial, incidental
expenses) to transfer within 20 days after it gives notice under
Section 6(b)(i) all its rights and obligations under this Agreement
in respect of the Affected Transactions to another of its Offices or
Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will
give notice to the other party to that effect within such 20-day
period, whereupon the other party may effect such a transfer within
30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the
other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid
that Termination Event.
(iv) Right to Terminate. If:
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected
with respect to all Affected Transactions within 30 days after
an Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax
Event upon Merger occurs and the Burdened Party is not the
Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then continuing,
designate a day not earlier than the clay such notice is effective as an
Early Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the
date so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or
2(e) in respect of the Terminated Transactions will be required to
be made, but without prejudice to the other provisions of this
Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and
will provide to the other party a statement (1) showing, in
reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e)) and
(2) giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written confirmation
from the source of a quotation obtained in determining a Market
Quotation, the records of the party obtaining such quotation will be
conclusive evidence of the existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of
an Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in
the case of an Early Termination Date which is designated as a
result of a Termination Event). Such amount will be paid together
with (to the extent permitted under applicable law) interest thereon
(before as well as after judgment) in the Termination Currency, from
(and including) the relevant Early Termination Date to (but
excluding) the date such amount is paid, at the Applicable Rate.
Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second
Method", as the case may be, shall apply. The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section, will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to
the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A)
the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to
the Defaulting Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if
it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's
Loss in respect of this Agreement. If that amount is a
positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section
6(c)(i)(3), if Market Quotation applies, or Section
6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting
Party will be deemed to be references to the Affected Party
and the party which is not the Affected Party, respectively,
and, if Loss applies and fewer than all the Transactions are
being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to (I)
the sum of (a) one-half of the difference between the
Settlement Amount of the party with the higher
Settlement Amount ("X") and the Settlement Amount of the
party with the lower Settlement Amount ("Y") and (b) the
Termination Currency Equivalent of the Unpaid Amounts
owing to X less (II) the Termination Currency Equivalent
of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable
equal to one-half of the difference between the Loss of
the party with the higher Loss ("X") and the Loss of the
party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate
and permitted by law to reflect any payments or deliveries made by
one party to the other under this Agreement (and retained by such
other party) during the period from the relevant Early Termination
Date to the date for payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable for
the loss of bargain and the loss of protection against future risks
and except as otherwise provided in this Agreement neither party
will be entitled to recover any additional damages as a consequence
of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by
applicable law, any obligation to make payments under this Agreement in
the Contractual Currency will not be discharged or satisfied by any tender
in any currency other than the Contractual Currency, except to the extent
such tender results in the actual receipt by the party to which payment is
owed, acting in a reasonable manner and in good faith in converting the
currency so tendered into the Contractual Currency, of the full amount in
the Contractual Currency of all amounts payable in respect of this
Agreement. If for any reason the amount in the Contractual Currency so
received falls short of the amount in the Contractual Currency payable in
respect of this Agreement, the party required to make the payment will, to
the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for
the shortfall. If for any reason the amount in the Contractual Currency so
received exceeds the amount in the Contractual Currency payable in respect
of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is
rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early
termination in respect of this Agreement or (iii) in respect of a judgment
or order of another court for the payment of any amount described in (i)
or (ii) above, the party seeking recovery, after recovery in full of the
aggregate amount to which such party is entitled pursuant to the judgment
or order, will be entitled to receive immediately from the other party the
amount of any shortfall of the Contractual Currency received by such party
as a consequence of sums paid in such other currency and will refund
promptly to the other party any excess of the Contractual Currency
received by such party as a consequence of sums paid in such other
currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency
is converted into the currency of the judgment or order for the purposes
of such judgment or order and the rate of exchange at which such party is
able, acting in a reasonable manner and in good faith in converting the
currency received into the Contractual Currency, to purchase the
Contractual Currency with the amount of the currency of the judgment or
order actually received by such party. The term "rate of exchange"
includes, without limitation, any premiums and costs of exchange payable
in connection with the purchase of or conversion into the Contractual
Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected
by judgment being obtained or claim or proof being made for any other sums
payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an
actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative
and not exclusive of any rights, powers, remedies and privileges provided
by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be deemed
an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall he entered into as soon
as practicable and may he executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange
of telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as
a waiver, and a single or partial exercise of any right, power or
privilege will not be presumed to preclude any subsequent or further
exercise, of that right, power or privilege or the exercise of any other
right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each
party that enters into a Transaction through an Office other than
its head or home office represents to the other party that,
notwithstanding the place of booking office or jurisdiction of
incorporation or organization of such party, the obligations of
such party are the same as if it had entered into the Transaction
through its head or home office. This representation will be
deemed to be repeated by such party on each date on which a
Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice
or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or
in accordance with the electronic messaging system details provided (see
the Schedule) and will be deemed effective as indicated:
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details
at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New
York City, if this Agreement is expressed to be governed by the laws
of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such
Proceedings, that such court does not have any jurisdiction over
such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on
its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to
service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement
of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it
will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorization, exemption,
notice, filing, registration or exchange control consent.
"Credit Event upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organized, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organized, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off' means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would
not (in the reasonable belief of the party making the determination)
produce a commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event upon Merger" has the meaning specified in Section 5(h).
"Terminated Transactions" means, with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
JPMORGAN CHASE BANK, N.A. SECURITIES TRUST 2007-CIBC20
-------------------------------------- ---------------------------------------
(Name of Party) (Name of Party)
By: Xxxxx Fargo Bank, N.A., not in its
individual capacity, but solely as
Trustee
By: /s/ Xxxxxx X Xxxxxx By: /s/ Xxx Xxxxxxxxx
----------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxx Xxxxxxxxx
Title: Managing Director Title: Vice President
Date: 9/28/07 Date: 9/28/07
EXHIBIT 10.4
(Multicurrency--Cross Border)
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of September 28, 2007
between JPMORGAN CHASE BANK, N.A. and X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES TRUST 2007-CIBC20
("Party A") ("Party B")
PART 1: Termination Provisions
(a) (i) "Trust Agreement" means the Pooling and Servicing Agreement dated as
of September 28, 2007, among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as depositor, Midland Loan Services, Inc., as master
servicer, Centerline Servicing, Inc., as special servicer and Xxxxx Fargo
Bank, N.A., as trustee and paying agent, as amended, modified,
supplemented, restated or replaced from time to time.
(ii) "Class A-MFL Certificates" means the Commercial Mortgage
Pass-Through Certificates, Series 2007-CIBC20, Class A-MFL, issued by
Party B under the Trust Agreement.
(b) "Specified Entity" means, in relation to Party A for the purpose of:-
Section 5(a)(v) (Default under Specified Transaction), none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none;
in relation to Party B for the purpose of:
Section 5(a)(v) (Default under Specified Transaction) none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none.
(c) "Specified Transaction" will have the meaning specified in Section 14.
(d) The "Breach of Agreement" provisions of Section 5(a)(ii), the
"Misrepresentation" provisions of Section 5(a)(iv), and the "Default under
Specified Transactions" provisions of Section 5(a)(v) will not apply to
Party B. The "Cross Default" provisions of Section 5(a)(vi) will not apply
to Party A or Party B.
(e) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A
will not apply to Party B.
(f) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
(g) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(iii) Both Party A and Party B agree that any amounts payable by Party B
to Party A under Section 6(e), if any, in connection with any Event of
Default or Termination Event will be payable only from collections on the
Trust Estate (as defined below), and only from funds, if any, remaining in
the Floating Rate Account (as defined in the Trust Agreement) after all
other amounts have been paid under the Class A-MFL Certificates (including
all principal amounts outstanding) under the Trust Agreement.
(h) "Termination Currency" means United States Dollars.
(i) Additional Termination Events. It shall be an Additional Termination
Event:
(i) if Party B fails to comply with Part 1(j) of this Schedule, in which
event Party B shall be the sole Affected Party and all Transactions shall
be Affected Transactions; or
(ii) if Party A fails to satisfy any of the requirements of Part 5(l),
within the applicable time periods set forth therein, in which event Party
A shall be the sole Affected Party and all Transactions shall be Affected
Transactions.
(j) Amendments. Party B shall deliver to Party A a copy of any proposed
amendment to the Trust Agreement, and any amendment to the Trust Agreement
that could reasonably materially and adversely affect Party A shall be
subject to Party A's prior consent.
(k) Downgrade of Party A. If a Ratings Event (as defined below) shall occur
and be continuing with respect to Party A, then Party A shall, within 5
Local Business Days of such Ratings Event, (A) give notice to Party B
of the occurrence of such Ratings Event, and (B) at Party A's option
and sole expense, (x) transfer Party A's rights and obligations under
this Agreement and all Confirmations related hereto to another party
(such party whose long term debt is being rated at least "A2" (and not
on watch for possible downgrade) by Moody's (as defined below) or rated
at least "A" by Fitch and S&P (as defined below)), subject to Rating
Agency confirmation, and at the cost of Party A, or (y) post Eligible
Collateral on a xxxx-to-market basis to secure Party B's exposure, if
any, to Party A, and such Eligible Collateral shall be provided in
accordance with an ISDA Credit Support Annex to be entered into between
Party A and Party B in the form attached hereto as Exhibit A, which
will be attached hereto and made a part hereof within 10 Local Business
Days of Party A's election to post Eligible Collateral. The Eligible
Collateral to be posted and the Credit Support Annex to be executed and
delivered shall be subject to Rating Agency confirmation. Party A's
obligations to find an eligible transferee or to post Eligible
Collateral under such Credit Support Annex shall remain in effect only
for so long as a Ratings Event is continuing with respect to Party A.
For the purpose of this Part 1(k), a "Ratings Event" shall occur with
respect to Party A if the long-term senior unsecured deposit ratings of
Party A cease to be at least "A3" by Xxxxx'x Investors Service, Inc. or
any successor thereto ("Moody's"), at least "A-" by Fitch, Inc., or any
successor thereto ("Fitch") or at least "A-" by Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., or any
successor thereto ("S&P") to the extent such obligations are rated by
Moody's or S&P.
The failure by Party A to either post Eligible Collateral or transfer its
rights and obligations to an eligible transferee in accordance herewith
shall constitute an Additional Termination Event for which Party A shall
be the sole Affected Party.
(l) Failure to Pay or Deliver. Section 5(a)(i) is hereby deleted in its
entirety and replaced with the following:
"Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i)
or 2(e) required to be made by it."
PART 2: Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will make the following representation:-
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (x) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (y) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness
of any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement and (z) the satisfaction of the agreement of
the other party contained in Section 4(d) of this Agreement, provided that
it shall not be a breach of this representation where reliance is placed
on clause (y) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following representations
specified below, if any:- none
PART 3: Agreement to Deliver Documents
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver Date by which to be
document Form/Document/Certificate delivered
-------------------------- -------------------------- ------------------------
Party A and Party B Any form, document or Upon request
certificate as may be
requested pursuant to
Section 4(a)(iii) of this
Agreement.
(b) Other documents to be delivered are:-
Party required to deliver Date by which to be Covered by Section
document Form/Document/Certificate delivered 3(d) Representation
-------------------------- ------------------------------------------ ---------------------- ----------------------
Party B Statements to Certificateholders of Party As soon as available. Yes
B
Party B Certified copies of all corporate Upon execution and Yes
authorizations and any other documents delivery of this
with respect to the execution, delivery Agreement
and performance of this Agreement and the
Trust Agreement
Party A and Certificate of authority and specimen Upon execution and Yes
Party B signatures of individuals executing this delivery of this
Agreement, and any Confirmations Agreement and
thereafter upon
request of the other
party
PART 4: Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of this Agreement:-
Address for notice or communications to Party A:
JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Address for notice or communications to Party B:
X.X. Xxxxxx Chase Commercial Mortgage Securities Trust 2007-CIBC20
c/o Wells Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services-X.X. Xxxxxx 2007-CIBC20
With a copy to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: CMBS
Re: X.X. Xxxxxx 2007-CIBC20
With a copy to:
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10 of this Agreement:-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party B.
(f) Credit Support Document. Details of any Credit Support Document:-
Party B agrees that only the amounts with respect to the Class A-MFL
Certificates on deposit in the Floating Rate Account (as such terms are
defined in the Trust Agreement) held by the Paying Agent under the Trust
Agreement (such amounts, the "Trust Estate") shall constitute security for
the obligations of Party B to Party A under this Agreement.
Party A agrees that any ISDA Credit Support Annex entered into between
Party A and Party B pursuant to Part 1(k) hereof shall be a Credit Support
Document for purposes of this Agreement.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
its conflict of laws doctrine, other than Section 5-1401 of the General
Obligations Law).
(i) Netting of Payments. All amounts payable on the same date, in the same
currency and in respect of the same Transaction shall be netted in
accordance with Section 2(c) of this Agreement. The election contained in
the last paragraph of Section 2(c) of this Agreement shall not apply for
the purposes of this Agreement.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
PART 5: Other Provisions
(a) Delivery of Confirmations. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation via facsimile
transmission. Party B agrees to respond to such Confirmation within
three (3) Local Business Days, either confirming agreement thereto or
requesting a correction of any error(s) contained therein. Failure by
Party A to send a Confirmation or of Party B to respond within such
period shall not affect the validity or enforceability of such
Transaction. Absent manifest error, there shall be a presumption that
the terms contained in such Confirmation are the terms of the
Transaction.
(b) Recording of Conversations. Each party to this Agreement acknowledges and
agrees to the tape recording of conversations between trading and
marketing personnel of the parties to this Agreement whether by one or
other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to
this Agreement.
(c) Furnishing Specified Information. Section 4(a)(iii) is hereby amended by
inserting "promptly upon the earlier of (i)" in lieu of the word "upon" at
the beginning thereof and inserting "or (ii) such party learning that the
form or document is required" before the word "any" on the first line
thereof.
(d) Notice by Facsimile Transmission. Section 12(a) is hereby amended by
inserting the words "2(b)," between the word "Section" and the number "5"
and inserting the words "or 13(c)" between the number "6" and the word
"may" in the second line thereof.
(e) Section 3(a) of this Agreement is amended by (i) deleting the word "and"
at the end of clause (iv); (ii) deleting the period at the end of clause
(v) and inserting therein "; and "; and (iii) by inserting the following
additional representation:
"(vi) Eligible Contract Participant. Each party represents to the other
party (which representation will be deemed to be repeated by each
party on each date on which a Transaction is entered into) that it
is an "eligible contract participant" as defined in Section 1a(12)
of the U.S. Commodity Exchange Act, 7 U.S.C. Section 1a(12)."
(f) Section 3 is revised so as to add the following Section (g) at the end
thereof:
"(g) Relationship Between Parties. Each party represents to the other
party and will be deemed to represent to the other party on the date
on which it enters into a Transaction that (absent a written
agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):-
(i) Non-Reliance. It is acting for its own account, and
it has made its own independent decisions to enter
into that Transaction and as to whether that
Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such
advisors as it has deemed necessary. It is not
relying on any communication (written or oral) of the
other party as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanations
related to the terms and conditions of a Transaction
shall not be considered investment advice or a
recommendation to enter into that Transaction.
Further, such party has not received from the other
party any assurance or guarantee as to the expected
results of that Transaction.
(ii) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and risks
of that Transaction. It is also capable of assuming, and
assumes, the financial and other risks of that
Transaction.
(iii) Status of Parties. The other party is not acting as an
agent, fiduciary or advisor for it in respect of that
Transaction."
(g) Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(h) Non Petition. Party A hereby agrees that it will not, prior to the date
which is one year and one day after all the Class A-MFL Certificates
issued by Party B pursuant to the Trust Agreement have been paid in
full, acquiesce, petition or otherwise invoke or cause Party B to
invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against Party B under any
federal or state bankruptcy, insolvency or similar law or for the
purpose of appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for Party B or any
substantial part of the property of Party B, or for the purpose of
ordering the winding up or liquidation of the affairs of Party B.
Nothing herein shall prevent Party A from participating in any such
proceeding once commenced.
(i) Limited Recourse. The obligations of Party B under this Agreement are
limited recourse obligations of Party B, payable solely from amounts
remaining in the Trust Estate after payment in full of all amounts due
to the Class A-MFL Certificates, subject to and in accordance with the
terms of the Trust Agreement. No recourse shall be had for the payment
of any amount owing in respect of this Agreement against the trustee or
paying agent, or any officer, member, director, employee, security
holder or incorporator thereof (each, an "Affiliated Person") of Party
B or its successors or assigns for any amounts payable under this
Agreement. Upon application of the Trust Estate in accordance with the
Trust Agreement, Party A shall not be entitled to take any further
steps against Party B to recover any sums due but still unpaid
hereunder or thereunder, and all claims by Party A against Party B
hereunder and/or under the Trust Agreement shall be extinguished.
(j) Limitation of Liability. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by
Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo"), not individually or personally
but solely as the trustee, in the exercise of the powers and authority
conferred and vested in it, (b) the representations, undertaking and
agreements herein made on the part of the Trust are made and intended
not as personal representations, undertakings and agreements by Xxxxx
Fargo but are made and intended for the purpose of binding only the
Trust, (c) nothing herein contained shall be construed as creating any
liability on Xxxxx Fargo individually or personally (other than to act
with the standard of care provided under the Trust Agreement), to
perform any covenant either expressed or implied contained herein, all
such liability, if any, being expressly waived by the parties who are
signatories to this Agreement and by any person claiming by, through or
under such parties and (d) under no circumstances shall Xxxxx Fargo be
personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust
under this Agreement.
(k) Transfer. Section 7 of this Agreement is supplemented by the additional
requirement that any transfer or assignment by Party A of its obligations
under this Agreement (including any Confirmation), and any amendments to
this Agreement (including any Confirmation), shall be subject to Rating
Agency confirmation.
(l) Compliance with Regulation AB.
(i) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Securities Exchange Act of
1934, as amended (the "Exchange Act") with respect to the Certificates, in
the reasonable determination made in good faith of the Sponsors (as
defined in the Prospectus), the aggregate "significance percentage" (as
defined in Regulation AB ("Regulation AB") under the Securities Act of
1933, as amended, and the Exchange Act) of all derivative instruments
(contemplated by Item 1115 of Regulation AB) provided by Party A and any
of its affiliates to Party B is at least 10% but less than 20%, Party A
shall, subject to subparagraph (iii) below, within five (5) Business Days
following request therefor by Party B provide the financial information
required under Item 1115(b)(1) of Regulation AB for Party A (and for the
group of affiliated entities, if applicable) (the "Item 1115(b)(1)
Information"). Any such Item 1115(b)(1) Information shall be in a form
suitable for conversion to the format required for filing by the Depositor
with the Securities and Exchange Commission via the Electronic Data
Gathering and Retrieval System (XXXXX).
(ii) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Exchange Act with respect to
the Certificates, in the reasonable determination made in good faith of
the Sponsors, the aggregate "significance percentage" of all derivative
instruments (contemplated by Item 1115 of Regulation AB) provided by Party
A and any of its affiliates to Party B is at least 20%, Party A shall,
subject to subparagraph (iii) below, within five (5) Business Days
following request therefor by Party B provide the financial information
required under Item 1115(b)(2) of Regulation AB for Party A (and for the
group of affiliated entities, if applicable) (the "Item 1115(b)(2)
Information", and together with the Item 1115(b)(1) Information, the
"Additional Information"). Any such Item 1115(b)(2) Information shall be
in a form suitable for conversion to the format required for filing by the
Depositor with the Securities and Exchange Commission via the Electronic
Data Gathering and Retrieval System (XXXXX). In addition, any such Item
1115(b)(2) Information shall be accompanied by any necessary auditor's
consents.
(iii) If Party A is unable to provide any such Additional Information if,
as and when required, Party A shall, at its option, within ten (10)
Business Days following request therefor, (1) promptly post collateral
satisfactory to the Sponsors in an amount which is reasonably determined
in good faith to be sufficient to reduce the aggregate "significance
percentage" to (x) in the case of subparagraph (i) above, below 10%, and
(y) in the case of subparagraph (ii) above, provided Party A is able to
meet the requirements of subparagraph (i) above, below 20%, in each case
pursuant to a Credit Support Annex or similar agreement reasonably
satisfactory to the Sponsors, or (2) at the sole expense of Party A,
without any expense or liability to Party B, transfer or assign its
obligations under this Agreement to a substitute counterparty reasonably
acceptable to Party B that (x) is able to provide such Additional
Information if, as and when required, and (y) enters into an agreement
similar in form to this Agreement pursuant to which such substitute
counterparty agrees to provide the Additional Information if, as and when
required.
(iv) Party A's obligation to provide any such Additional Information
shall terminate beginning in any such year in which Party B's obligation
to file periodic reports under the Exchange Act has been terminated, and
shall continue to be terminated unless Party B notifies Party A that Party
B's obligation to file periodic reports under the Exchange Act has
resumed.
Accepted and agreed:
JPMORGAN CHASE BANK, N.A. J.P. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES TRUST 2007-CIBC20
By: Xxxxx Fargo Bank, N.A., not in its
individual capacity, but solely as
Trustee
By: /s/ Xxxxxx X Xxxxxx By: /s/ Xxx Xxxxxxxxx
----------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxx Xxxxxxxxx
Title: Managing Director Title: Vice President
EXHIBIT A
PARAGRAPH 13 TO
CREDIT SUPPORT ANNEX
to the Schedule to the
Master Agreement
dated as of September 28, 2007
between
JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Xxxxx Commercial
("Xxxxxx") Mortgage Securities Trust
2007-CIBC20
("Counterparty")
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes no additional obligations with respect to either
party.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a).
(B) "Return Amount" has the meaning specified in Paragraph 3(b).
(C) "Credit Support Amount" shall not have the meaning specified
in Paragraph 3(b) and, instead, will have the following
meaning:
"Credit Support Amount" means, for any Valuation Date, (i) the
Secured Party's Modified Exposure for that Valuation Date minus (ii)
the Pledgor's Threshold; provided, however, that the Credit Support
Amount will be deemed to be zero whenever the calculation of Credit
Support Amount yields a number less than zero.
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral":
"Valuation
Xxxxxx Percentage"
--------------------------------------------------------------------------------------------------
(A) USD Cash X 100%
--------------------------------------------------------------------------------------------------
(B) Negotiable debt obligations issued by the U.S. Treasury X 98.8%
Department having a remaining maturity of one year or less
from the Valuation Date
--------------------------------------------------------------------------------------------------
(C) Negotiable debt obligations issued by the U.S. Treasury X 92%
Department having a remaining maturity of more than one year
but less than ten years from the Valuation Date
--------------------------------------------------------------------------------------------------
(D) Negotiable debt obligations issued by the U.S. Treasury X 84%
Department having a remaining maturity of ten years or more
from the Valuation Date
--------------------------------------------------------------------------------------------------
(E) Agency Securities having a remaining maturity of one year or X 98.4%
less from the Valuation Date
--------------------------------------------------------------------------------------------------
(F) Agency Securities having a remaining maturity of more than X 90%
one year but less than ten years from the Valuation Date
--------------------------------------------------------------------------------------------------
(G) Agency Securities having a remaining maturity of ten years X 82%
or more from the Valuation Date
--------------------------------------------------------------------------------------------------
(H) USD denominated Commercial Paper rated A1/P1 by S&P and X 97%
Moody's respectively, that (a) settles within DTC, (b) is
not issued by Xxxxxx or any of its Affiliates and (c) has a
remaining maturity of 30 days or less from the Valuation Date
--------------------------------------------------------------------------------------------------
For purposes of the foregoing:
(1) "Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Association or the Federal Home Loan Mortgage Corporation, but
excluding (i) interest only and principal only securities and (ii)
Collateralized Mortgage Obligations, Real Estate Mortgage Investment
Conduits and similar derivative securities.
(2) "DTC" shall mean The Depository Trust & Clearing Corporation, or
its successor.
(3) "Moody's" shall mean Xxxxx'x Investors Service, Inc., or its
successor.
(4) "S&P" shall mean Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., or its successor.
(5) Eligible Collateral of the type described in Paragraph
13(b)(ii)(H) may never constitute more than 20% of the total Value
of Posted Collateral.
(6) With respect to Posted Collateral consisting of Eligible
Collateral of the type described in Paragraph 13(b)(ii)(H), the
aggregate Value of such Posted Collateral issued by the same issuer
may never be greater than 33% of the aggregate Value of all Posted
Collateral consisting of Eligible Collateral of the type described
in Paragraph 13(b)(ii)(H).
(7) "Fitch" shall mean Fitch, Inc., or its successor.
(iii) Other Eligible Support. There shall be no "Other Eligible Support"
for purposes of this Annex, unless agreed in writing between the parties.
(iv) Thresholds.
(A) "Independent Amount" means zero.
(B) "Threshold" shall not apply with respect to the Counterparty
and, with respect to Xxxxxx, shall mean the amounts determined
on the basis of the lower of the Credit Ratings set forth in
the following table, provided, however, that if (i) Xxxxxx has
no Credit Rating, or (ii) an Event of Default has occurred and
is continuing with respect to Xxxxxx, Morgan's Threshold shall
be U.S.$0:
CREDIT RATING THRESHOLD
(S&P/Moody's/Fitch) Xxxxxx
--------------------------------------------------
S&P: A- or above Infinity
Moody's: A3 or above
Fitch: A- or above
--------------------------------------------------
S&P: Below A- US$0
Moody's: Below A3
Fitch: Below A-
--------------------------------------------------
As used herein:
"Credit Rating" means, with respect to (a) S&P, the rating assigned
by S&P to the short-term and long-term senior unsecured deposits of
Xxxxxx or (b) Moody's, the rating assigned by Moody's to the
short-term and long-term senior unsecured deposits of Xxxxxx, or (c)
Fitch, the rating assigned by Fitch to the short-term and long-term
senior unsecured deposits of Xxxxxx, as applicable.
(C) "Minimum Transfer Amount", with respect to a party on any
Valuation Date, means U.S. $250,000.
(D) Rounding. The Delivery Amount and the Return Amount will be
rounded up and down to the nearest integral multiple of
$100,000, respectively.
(c) Valuation and Timing.
(i) "Valuation Agent" means Xxxxxx.
(ii) "Valuation Date" means weekly on the last Local Business Day of each
week or more frequently if agreed in writing by the parties.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Valuation Date or date of calculation, as
applicable.
(iv) "Notification Time" means 12:00 p.m., New York time, on a Local
Business Day.
(d) Conditions Precedent. With respect to Xxxxxx, any Additional Termination
Event (if Xxxxxx is the Affected Party with respect to such Termination
Event) will be a "Specified Condition".
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice is given that gives
rise to a dispute under Paragraph 5.
(ii) Value. For the purposes of Paragraphs 5(i)(C) and 5(ii), the Value
of Posted Credit Support other than Cash will be calculated as follows:
(A) with respect to any Eligible Collateral except Cash, the
sum of (I) (x) the mean of the high bid and low asked
prices quoted on such date by any principal market maker
for such Eligible Collateral chosen by the Disputing Party,
or (y) if no quotations are available from a principal
market maker for such date, the mean of such high bid and
low asked prices as of the first day prior to such date on
which such quotations were available, plus (II) the accrued
interest on such Eligible Collateral (except to the extent
Transferred to a party pursuant to any applicable provision
of this Agreement or included in the applicable price
referred to in (I) of this clause (A)) as of such date;
multiplied by the applicable Valuation Percentage.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Counterparty and
its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided that the following conditions applicable to it
are satisfied:
(1) Counterparty is not a Defaulting Party and
(2) Posted Collateral may be held only in the following
jurisdictions: New York State.
Initially, the Custodian for Counterparty is: None
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c)(i) will
not apply to Counterparty but the provisions of Paragraph 6(c)(ii) will
apply to the Counterparty.
(h) Distributions and Interest Amount.
(i) Interest Rate. "Interest Rate" for any day means, the Federal Funds
Overnight Rate. For the purposes hereof, "Federal Funds Overnight Rate"
means, for any day, an interest rate per annum equal to the rate published
as the Federal Funds Effective Rate that appears on Telerate Page 118 for
such day.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made monthly on the second Local Business Day of each calendar
month.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). Not Applicable.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable
(k) Demands and Notices.
All demands, specifications and notices under this Annex will be made pursuant
to the Notices Section of this Agreement, unless otherwise specified here:
Counterparty: Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services-X.X.
Xxxxxx 2007-CIBC20
Xxxxxx: JPMorgan Chase Bank, National Association
Collateral Middle Office Americas 3/OPS2
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Email: xxxxxxxxxx_xxxxxxxx@xxxxxxxx.xxx
(l) Other Provisions:
(i) Modification to Paragraph 1: The following subparagraph (b) is
substituted for subparagraph (b) of this Annex:
(b) Secured Party and Pledgor. All references in this Annex to the
"Secured Party" will be to Counterparty and all corresponding references
to the "Pledgor" will be to Xxxxxx.
(ii) Modification to Paragraph 2: The following Paragraph 2 is
substituted for Paragraph 2 of this Annex:
Paragraph 2. Security Interest. The Pledgor hereby pledges to the
Secured Party, as security for its Obligations, and grants to the
Secured Party a first priority continuing security interest in, lien
on and right of Set-Off against all Posted Collateral Transferred to
or received by the Secured Party hereunder. Upon the Transfer by the
Secured Party to the Pledgor of Posted Collateral, the security
interest and lien granted hereunder on that Posted Collateral will
be released immediately and, to the extent possible, without any
further action by either party.
(iii) Modification to Paragraph 9: The following first clause of Paragraph
9 is substituted for the first clause of Paragraph 9 of this Annex:
Paragraph 9. Representations. The Pledgor represents to the Secured
Party (which representations will be deemed to be repeated as of each
date on which it Transfers Eligible Collateral) that:
(iv) Modifications to Paragraph 12: The following definitions of
"Pledgor" and "Secured Party" are substituted for the definitions of those
terms contained in Paragraph 12 of this Annex:
"Pledgor" means Xxxxxx, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii)
has Transferred Eligible Credit Support under Paragraph 3(a).
"Secured Party" means Counterparty, when that party (i) makes a demand for
or is entitled to receive Eligible Credit Support under Paragraph 3(a) or
(ii) holds or is deemed to hold Posted Credit Support.
(v) Addition to Paragraph 12: The following definitions of "Modified
Exposure" shall be added immediately after the definition of the term
"Minimum Transfer Amount" and immediately prior to the definition of the
term "Notification Time" in Paragraph 12 of this Annex:
"Modified Exposure" means, for any Valuation Date, an amount equal to the
sum of (i) the greater of USD 0 and the Secured Party's Exposure for that
Valuation Date and (ii) the sum of the Volatility Buffers determined by
the Valuation Agent with respect to each Transaction subject to this
Agreement. As used herein:
"Volatility Buffer" means, with respect to a Transaction, an amount equal
to the product of (a) the Factor applicable to the Transaction and (b) the
Notional Amount of the Transaction.
"Factor" means, with respect to a Transaction, a percentage dependent on
Xxxxxx'x Counterparty Rating by S&P or Moody's, as applicable, and the
original maturity of the Transaction and determined by the Valuation Agent
by reference to the following table:
--------------------------------------------------------------
Counterparty Maturities
Rating Maturities up Maturities up up to 30
(S&P/Moody's) to 5 years (%) to 10 years (%) years (%)
--------------------------------------------------------------
A-2/P-2 3.25 4.00 4.75
--------------------------------------------------------------
A-3/P-3 4.00 5.00 6.25
--------------------------------------------------------------
BB+ or lower/Ba1 4.50 6.75 7.50
or lower
--------------------------------------------------------------
Modification to Paragraph 12: Clause "(B)" of the definition of "Value"
will be substituted to read in its entirety as follows:
"(B) a security, the bid price obtained by the Valuation Agent from one of
the Pricing Sources multiplied by the applicable Valuation Percentage, if
any;"
(vi) Addition to Paragraph 12: The following definition of "Pricing
Sources" shall be added immediately after the definition of the term
"Posted Credit Support" and immediately prior to the definition of the
term "Recalculation Date" in Paragraph 12 of this Annex:
"Pricing Sources" means the sources of financial information commonly
known as Bloomberg, Bridge Information Services, Data Resources Inc.,
Interactive Data Services, International Securities Market Association,
Xxxxxxx Xxxxx Securities Pricing Service, Xxxxxx Data Corporation,
Reuters, Wood Gundy, Trepp Pricing, XX Xxxxx, S&P and Telerate.
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A.
By: /s/Xxxxxx X Xxxxxx
-------------------------------------
Name: Xxxxxx X Xxxxxx
Title: Managing Director
X.X. XXXXXX XXXXX COMMERCIAL
MORTGAGE SECURITIES TRUST 2007-CIBC20
By: Xxxxx Fargo Bank, N.A., not in its individual
capacity, but solely as Trustee
By: /s/ Xxx Xxxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
EXHIBIT 10.5
CONFIRMATION FOR U.S. DOLLAR INTEREST RATE SWAP
TRANSACTION UNDER 1992 MASTER AGREEMENT
Date: September 28, 2007 Our ref: 99501688
To: X.X. Xxxxxx Xxxxx Commercial Mortgage From: JPMorgan Chase Bank, N.A.
Securities Trust 2007-CIBC20 000 Xxxx Xxxxxx
c/o Wells Fargo Bank, N.A. 6th Floor
0000 Xxx Xxxxxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services-X.X. Xxxxxx Contact: Xxxxxx Xxxxxx
2007-CIBC20
Telecopy Fax No: (000) 000-0000
No: (000) 000-0000
Tel No: (000) 000-0000
Dear Sir/Madam,
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp. Trust 2007-CIBC20 and JPMorgan Chase Bank, N.A. (each
a "party" and together "the parties") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the ISDA Master Agreement specified in paragraph 1 below (the
"Agreement").
The definitions and provisions contained in the 2000 ISDA
Definitions (as published by the International Swaps and Derivatives
Association, Inc., the "Definitions") are incorporated into this Confirmation.
In the event of any inconsistency between the Definitions and this Confirmation,
this Confirmation will govern. Capitalized terms used herein and not otherwise
defined have the meanings set forth in the Definitions or the Trust Agreement
referred to below under "Credit Support Documents."
1. This Confirmation supplements, forms part of, and is subject to, the ISDA
Master Agreement (including the Schedule thereto) dated as of September 28,
2007, as amended and supplemented from time to time (the "Agreement"), between
the parties. All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
In this Confirmation "Party A" means JPMorgan Chase Bank, N.A. and
"Party B" means X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Trust
2007-CIBC20 (the trust established pursuant to the Trust Agreement, as defined
herein).
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: For each Calculation Period, the
Certificate Balance (as defined in the
Trust Agreement) of the Commercial Mortgage
Pass-Through Certificates, Series
2007-CIBC20, Class A-MFL Regular Interest,
issued by Party B under the Trust
Agreement, as of the close of business on
the Distribution Date (as defined in the
Trust Agreement) occurring in such
Calculation Period, except that the
Notional Amount for the Initial Calculation
Period shall be the Original Certificate
Balance (as defined in the Trust Agreement)
of the Commercial Mortgage Pass-Through
Certificates, Series 2007-CIBC20, Class
A-MFL Regular Interest. For the avoidance
of doubt, on the Effective Date, the
Notional Amount is equal to $35,000,000.
Trade Date: September 28, 2007
Effective Date: September 28, 2007
Termination Date: The earlier of: (a) the Rated Final
Distribution Date (as defined in the Trust
Agreement) in February of 2051; or (b) the
date when the Notional Amount hereunder has
been reduced to zero, in each case subject
to adjustment in accordance with the
Following Business Day Convention.
Initial Accrual
Interest Payment by $155,662.50, to be paid on the Effective
Party A to Party B: Date.
Initial Up-front
Payment by Party B
to Party A: $3,983.00, to be paid on the Effective Date.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer The related Distribution Date, beginning on
Payment Dates: October 12, 2007 and ending on the
Termination Date.
Fixed Rate: 5.9300% per annum
Fixed Rate Day 30/360 (without regard to the date of the
Count Fraction: first day or last day of the Calculation
Period).
Initial Fixed Rate From and including September 1, 2007,
Calculation Period: through and including September 30, 2007.
Fixed Amount: For each Payment Date in respect of a Fixed
Rate Calculation Period, the lesser of: (1)
the product of (a) the Fixed Rate, (b) the
Fixed Rate Day Count Fraction and (c) the
Notional Amount for such Fixed Rate
Calculation Period (the "Regular Fixed
Amount"); (2) the amount of funds available
for such payment under the Trust Agreement
(the "Available Fixed Amount"); or (3) the
product of (a) the Weighted Average Net
Mortgage Rate (as defined in the Trust
Agreement) with respect to the related
Distribution Date, (b) the Fixed Rate Day
Count Fraction and (c) the Notional Amount
for such Fixed Calculation Period (the "Net
WAC Fixed Amount").
Fixed Rate Payer The first day of each calendar month (with
Period End Dates: no adjustments).
Fixed Rate Payer For each Payment Date, the period from and
Delayed Payment: including the immediately preceding Period
End Date to, but excluding, such Payment
Date.
Fixed Rate For each Payment Date, the calendar month
Calculation Period: preceding such Payment Date during the Term
of this Swap Transaction.
Additional Fixed For any Payment Date, the amount of any
Amount: Yield Maintenance Charges (as defined in
the Trust Agreement) paid in respect of the
Class A-MFL Regular Interest on the related
Distribution Date under the Trust Agreement.
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer The Business Day prior to the related
Payment Dates: Distribution Date, beginning on October 11,
2007 and ending on the Termination Date.
Floating Rate for
Initial Calculation
Period: LIBOR plus the Spread.
Floating Rate LIBOR, as defined and calculated under the
Option: Trust Agreement; provided that for the
Initial Floating Rate Calculation Period,
the Floating Rate Option should be 5.12875%.
Spread: 0.6000%
Floating Rate Day
Count Fraction: Actual/360
Floating Rate For each Payment Date, the period from and
Calculation Period: including the Distribution Date in the
preceding calendar month (or the Closing
Date (as defined in the Trust Agreement),
in the case of the Initial Floating Rate
Calculation Period), to, but excluding, the
related Distribution Date, except that the
final Calculation Period will end on, but
exclude, the Termination Date.
Initial Floating From and including the Closing Date to, but
Rate Calculation excluding, October 12, 2007.
Period:
Floating Amount: For each Payment Date in respect of a
Floating Rate Calculation Period, the
lesser of: (1) an amount equal to the
product of (a) the Floating Rate, (b) the
Floating Rate Day Count Fraction and (c)
the Notional Amount for such Floating Rate
Calculation Period (the "Regular Floating
Amount"); (2) an amount equal to (a) the
Regular Floating Amount minus (b) the
excess of (i) the Regular Fixed Amount for
such Payment Date over (ii) the Available
Fixed Amount; or (3) an amount equal to (a)
the Regular Floating Amount minus (b) the
excess of (i) Regular Fixed Amount for such
Payment Date over (ii) the Net WAC Fixed
Amount for such Payment Date.
Business Days: As defined in the Trust Agreement.
Calculation Agent: Party B
Other: For the avoidance of doubt, for purposes of
Section 2(c) of the Agreement, any amounts
payable by the Floating Rate Payer on a
Floating Rate Payer Payment Date, and by
the Fixed Rate Payer on the related Fixed
Rate Payer Payment Date, shall be netted
even though such dates may be different,
and the party with the larger aggregate
amount shall make the net payment on the
related Payment Date.
3. Recording of Conversations
Each party to this Transaction acknowledges and agrees to the tape
recording of conversations between the parties to this Transaction whether by
one or other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to the
Agreement and/or this Transaction.
4. Credit Support With respect to Party B, the Pooling and
Documents: Servicing Agreement, dated as of September
28, 2007, among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as
depositor, Midland Loan Services, Inc., as
master servicer, Centerline Servicing,
Inc., as special servicer and Xxxxx Fargo
Bank, N.A., as trustee and paying agent, as
amended, modified, supplemented, restated
or replaced from time to time (the "Trust
Agreement").
5. Account Details:
Account for Name: JPMorgan Chase Bank, N.A.
payments to City: New York
Party A: ABA: 000-000-000
Acct #: 000-000-000
Attn: Balance Guaranty
Account for Name: Xxxxx Fargo Bank, N.A., as Paying
payments to Agent
Party B: ABA:000-000-000
for credit to SAS Clearing 0000000000,
for further credit to A/C # 53181100
JPM 2007-CIBC20 Attn: CMBS
6. Offices:
The Office of
Party A for this
Transaction is: New York, NY
The Office of
Party B for this
Transaction is: Columbia, MD
Please confirm that the foregoing correctly sets forth the
terms and conditions of our agreement by responding within
three (3) Business Days by returning via telecopier an
executed copy of this Confirmation to the attention of Xxxxxx
Xxxxxx (fax no. (000) 000-0000).
Failure to respond within such period shall not affect the validity or
enforceability of this Transaction, and shall be deemed to be an affirmation of
the terms and conditions contained herein, absent manifest error.
Accepted and confirmed as of the date
first written:
X.X. Xxxxxx Xxxxx Commercial Mortgage
JPMorgan Chase Bank, N.A. Securities Trust 2007-CIBC20
By: Xxxxx Fargo Bank, N.A., not in its
individual capacity, but solely as
Trustee
By: /s/ Xxxxxx X Xxxxxx By: /s/ Xxx Xxxxxxxxx
---------------------------------- -------------------------------------
Name: Xxxxxx X Xxxxxx Name: Xxx Xxxxxxxxx
Title: Managing Director Title: Vice President
SCHEDULE 1
Mortgage Loans Containing Additional Debt
Mortgage Loan No. Property Name
-------------------------- ---------------------------------------------
2 Xxxxxx Xxxxx
0 Xxxxxxxx Xxxxx Xxxx
14 USFS Industrial Distribution Portfolio
00 Xxxxxxx Xxxx Retail
28 Xxxxxxxxx Plaza
SCHEDULE 2
Mortgage Loans Which Initially Pay Interest Only
Mortgage Loan No. Property Name
----------------- ---------------------------------------------
1 Centro - New Plan Pool I
0 Xxxxxx Xxxxx
0 Xxxxx Xxxxx Xxxx
4 Sawgrass Xxxxx Mall
5 Financial Plaza
6 Scripps Waterbridge
7 Dry Creek Corporate Center II & III
8 65 Corporate Xxxxx Drive
9 550 North Continental
10 3000 SouthPoint
11 X'Xxxx Industrial 701 Xxxx
12 X'Xxxx Industrial 55 East Xxxxxx
13 X'Xxxx Industrial 1525 Chase
14 USFS Industrial Distribution Portfolio
15 Xxxxx Tower
00 Xxxxxxxxx Xxxxxxxxxx
00 XXX Xxxxxxxxx
00 Xxxxxxx Xxxx Retail
19 Portola Plaza Hotel
20 Forest View
21 Whispering Sands
22 Sauk Trail MHC
23 International Aluminum Portfolio
24 Pillsbury Winthrop
00 Xxxxxxxx Xxxxxxxx
00 Xxxxxxxxx Xxxxx
00 The Xxxxxxx Hotel
30 Columbus Corporate Xxxxxx
00 Xxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxx
33 Autumn Creek
34 Timber Ridge Apartments
35 Millennium Garage
36 Broadstone Stonebriar
38 Enclave at the Foothills
39 Marketplace at Chews Landing
00 Xxxxx Xxxxx Xxxxxxx
00 Xxxx Xxxxx Medical Office
43 Carlsbad Commerce Center
44 Associated Hygienic Products
00 Xxxxxxxx Xxxxx
00 Southshore Medical
48 000 Xxxxx Xxxxxxx Xxxxxx
49 Gannttown
51 Eagles Landing Apartments
53 7700 Place
00 Xxxxx Xxxxxxxx
00 Xxxxxxx Xxxxxxx
57 Palma Sola Shopping Center
58 Hallmark Health Systems
59 Xxxxxxxxx Xxxxxxxx Plaza
61 Mid Memphis Tower
62 7515 Greenville
00 Xxxx'x Xxxxx
00 Xxxxxxxxxx Xxxx Apartments
68 Ultra Plaza
69 Valet Airpark
70 Pipers Crossing
00 Xxxx Xxxxxx Xxxxx
73 000 X. Xxxx Xxx
00 Xxxx Xxxxx Xxxxx Shopping Center
00 Xxxxxxx Xxx - Xxxxxxxxx, XX
77 000 Xxxxxxxx
78 000-000 Xxxx 00xx Xxxxxx
79 Shadow Creek Apartments
83 Xxxxxxxx IV
00 Xxxx Xxxxx MHC
88 International Corporate Center
89 Independence Plaza III
00 Xxxxxxx Xxxx Xxxxxxxxxx
00 Xxxxx Xxxxxx Xxxxxx - Xxxxxx, XX
00 Xxxxxxx Xxx & Xxxxxx - Xxxxxxxxxxx, XX
97 660 North Central Expressway
00 Xxxxxxx Xxxxx Xxxxxxxxxx
000 One Milk Street
102 Armon Bay Apartments
103 PNC Bank - XxXxxx
000 Xxx Xxxxxxxxxxx Xxxxxxxx Xxxxxx - Xxxxxx, XX
108 Gold's Gym - O'Fallon, MO
000 Xxxxxxx Xxxxxx
111 Gold's Gym - St. Xxxxxx, MO
000 Xxxxxxxxx Xxxxx
117 24 Hour Fitness Olathe
119 Circuit City Aurora Colorado
120 Mansfield Portfolio
122 Woodhill Apartments
123 Xxxxxxxx
000 Xxxxxxxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx Xxxxxxxxxx
000 Xxxx Xxxx Apartments
128 Winter Haven Corners
129 Tower at Boerne
000 Xxx Xxxxxxxx Xxxxxxxx-Xxxxxxx Xxxxxx
131 521-545 St. Xxxx Place
133 2200 North Xxxx
000 000 Xxxx 00xx Xxxxxx
135 Bordeaux Apartments
136 Roselawn
137 Murrieta Professional Plaza
139 0000 Xxxx Xxxxxx
140 000 Xxxx 00xx Xxxxxx
000 Xxxxxxxxx Shopping Center
143 309 West 43rd Street
144 Xxxxxxx'x Supermarket
SCHEDULE 3
Class X Reference Rate Schedule
Distribution Date Reference Rate Distribution Date Reference Rate
-------------------- ----------------- --------------------- ----------------
October 12, 2007 6.16869% April 12, 2011 6.35441%
November 12, 2007 6.36892% May 12, 2011 6.14840%
December 12, 2007 6.16455% June 12, 2011 6.35426%
January 12, 2008 6.36888% July 12, 2011 6.14825%
February 12, 2008 6.16451% August 12, 2011 6.35411%
March 12, 2008 6.16530% September 12, 2011 6.35404%
April 12, 2008 6.36930% October 12, 2011 6.14803%
May 12, 2008 6.16492% November 12, 2011 6.35388%
June 12, 2008 6.36926% December 12, 2011 6.14788%
July 12, 2008 6.16488% January 12, 2012 6.35372%
August 12, 2008 6.36815% February 12, 2012 6.14946%
September 12, 2008 6.36808% March 12, 2012 6.14847%
October 12, 2008 6.16376% April 12, 2012 6.34970%
November 12, 2008 6.36803% May 12, 2012 6.14350%
December 12, 2008 6.16371% June 12, 2012 6.34980%
January 12, 2009 6.16368% July 12, 2012 6.14082%
February 12, 2009 6.16366% August 12, 2012 6.34798%
March 12, 2009 6.16374% September 12, 2012 6.34755%
April 12, 2009 6.36780% October 12, 2012 6.13868%
May 12, 2009 6.16345% November 12, 2012 6.34152%
June 12, 2009 6.36765% December 12, 2012 6.13586%
July 12, 2009 6.16330% January 12, 2013 6.13572%
August 12, 2009 6.36749% February 12, 2013 6.13559%
September 12, 2009 6.36782% March 12, 2013 6.13639%
October 12, 2009 6.15682% April 12, 2013 6.34077%
November 12, 2009 6.35759% May 12, 2013 6.13513%
December 12, 2009 6.15018% June 12, 2013 6.34048%
January 12, 2010 6.15012% July 12, 2013 6.13485%
February 12, 2010 6.15007% August 12, 2013 6.34184%
March 12, 2010 6.15017% September 12, 2013 6.34171%
April 12, 2010 6.35594% October 12, 2013 6.13604%
May 12, 2010 6.14979% November 12, 2013 6.34143%
June 12, 2010 6.35557% December 12, 2013 6.13579%
July 12, 2010 6.14941% January 12, 2014 6.13565%
August 12, 2010 6.35523% February 12, 2014 6.16041%
September 12, 2010 6.35507% March 12, 2014 6.16164%
October 12, 2010 6.14895% April 12, 2014 6.36421%
November 12, 2010 6.35480% May 12, 2014 6.16004%
December 12, 2010 6.14877% June 12, 2014 6.36397%
January 12, 2011 6.14869% July 12, 2014 6.15981%
February 12, 2011 6.14863% August 12, 2014 6.37053%
March 12, 2011 6.14948% September 12, 2014 6.37042%
SCHEDULE 4
---------------
Class A-SB Planned Principal Balance Schedule
--------------------------------------- -------------------------------------
Date Balance
--------------------------------------- -------------------------------------
October 12, 2007 $84,435,000.00
--------------------------------------- -------------------------------------
November 12, 2007 $84,435,000.00
--------------------------------------- -------------------------------------
December 12, 2007 $84,435,000.00
--------------------------------------- -------------------------------------
January 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
February 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
March 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
April 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
May 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
June 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
July 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
August 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
September 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
October 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
November 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
December 12, 2008 $84,435,000.00
--------------------------------------- -------------------------------------
January 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
February 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
March 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
April 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
May 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
June 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
July 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
August 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
September 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
October 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
November 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
December 12, 2009 $84,435,000.00
--------------------------------------- -------------------------------------
January 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
February 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
March 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
April 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
May 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
June 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
July 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
August 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
September 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
October 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
November 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
December 12, 2010 $84,435,000.00
--------------------------------------- -------------------------------------
January 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
February 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
March 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
April 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
May 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
June 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
July 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
August 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
September 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
October 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
November 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
December 12, 2011 $84,435,000.00
--------------------------------------- -------------------------------------
January 12, 2012 $84,435,000.00
--------------------------------------- -------------------------------------
February 12, 2012 $84,434,908.16
--------------------------------------- -------------------------------------
March 12, 2012 $83,464,977.83
--------------------------------------- -------------------------------------
April 12, 2012 $82,717,573.60
--------------------------------------- -------------------------------------
May 12, 2012 $81,842,106.24
--------------------------------------- -------------------------------------
June 12, 2012 $81,077,063.03
--------------------------------------- -------------------------------------
July 12, 2012 $80,157,852.46
--------------------------------------- -------------------------------------
August 12, 2012 $79,334,978.41
--------------------------------------- -------------------------------------
September 12, 2012 $78,391,300.11
--------------------------------------- -------------------------------------
October 12, 2012 $76,973,132.42
--------------------------------------- -------------------------------------
November 12, 2012 $75,750,036.03
--------------------------------------- -------------------------------------
December 12, 2012 $74,301,032.70
--------------------------------------- -------------------------------------
January 12, 2013 $73,063,223.34
--------------------------------------- -------------------------------------
February 12, 2013 $71,818,600.27
--------------------------------------- -------------------------------------
March 12, 2013 $69,911,697.42
--------------------------------------- -------------------------------------
April 12, 2013 $68,649,713.28
--------------------------------------- -------------------------------------
May 12, 2013 $67,162,868.99
--------------------------------------- -------------------------------------
June 12, 2013 $65,885,748.51
--------------------------------------- -------------------------------------
July 12, 2013 $64,384,175.33
--------------------------------------- -------------------------------------
August 12, 2013 $63,091,753.73
--------------------------------------- -------------------------------------
September 12, 2013 $61,792,217.08
--------------------------------------- -------------------------------------
October 12, 2013 $60,210,821.46
--------------------------------------- -------------------------------------
November 12, 2013 $58,847,910.62
--------------------------------------- -------------------------------------
December 12, 2013 $57,250,839.99
--------------------------------------- -------------------------------------
January 12, 2014 $55,871,645.25
--------------------------------------- -------------------------------------
February 12, 2014 $54,484,864.64
--------------------------------------- -------------------------------------
March 12, 2014 $52,412,788.06
--------------------------------------- -------------------------------------
April 12, 2014 $51,006,971.80
--------------------------------------- -------------------------------------
May 12, 2014 $49,368,150.92
--------------------------------------- -------------------------------------
June 12, 2014 $47,945,584.09
--------------------------------------- -------------------------------------
July 12, 2014 $46,289,698.92
--------------------------------------- -------------------------------------
August 12, 2014 $44,849,319.04
--------------------------------------- -------------------------------------
September 12, 2014 $43,417,757.78
--------------------------------------- -------------------------------------
October 12, 2014 $41,756,687.57
--------------------------------------- -------------------------------------
November 12, 2014 $40,308,112.90
--------------------------------------- -------------------------------------
December 12, 2014 $38,630,487.35
--------------------------------------- -------------------------------------
January 12, 2015 $37,164,714.25
--------------------------------------- -------------------------------------
February 12, 2015 $35,690,878.82
--------------------------------------- -------------------------------------
March 12, 2015 $33,548,144.62
--------------------------------------- -------------------------------------
April 12, 2015 $32,054,406.13
--------------------------------------- -------------------------------------
May 12, 2015 $30,332,832.71
--------------------------------------- -------------------------------------
June 12, 2015 $28,821,404.54
--------------------------------------- -------------------------------------
July 12, 2015 $27,082,617.71
--------------------------------------- -------------------------------------
August 12, 2015 $25,553,307.47
--------------------------------------- -------------------------------------
September 12, 2015 $24,015,584.66
--------------------------------------- -------------------------------------
October 12, 2015 $22,251,211.14
--------------------------------------- -------------------------------------
November 12, 2015 $20,695,320.28
--------------------------------------- -------------------------------------
December 12, 2015 $18,913,267.86
--------------------------------------- -------------------------------------
January 12, 2016 $17,339,011.35
--------------------------------------- -------------------------------------
February 12, 2016 $15,756,094.50
--------------------------------------- -------------------------------------
March 12, 2016 $13,731,017.86
--------------------------------------- -------------------------------------
April 12, 2016 $12,128,245.95
--------------------------------------- -------------------------------------
May 12, 2016 $10,300,574.66
--------------------------------------- -------------------------------------
June 12, 2016 $8,678,927.15
--------------------------------------- -------------------------------------
July 12, 2016 $6,832,888.45
--------------------------------------- -------------------------------------
August 12, 2016 $5,192,160.03
--------------------------------------- -------------------------------------
September 12, 2016 $3,542,404.81
--------------------------------------- -------------------------------------
October 12, 2016 $1,669,015.14
--------------------------------------- -------------------------------------
November 12, 2016 and thereafter $0.00
--------------------------------------- -------------------------------------
